J.Ini""'"'^  .-.<■    VVfishinptoii 


Gift  of. 


Ilerritt,   Sunners  &  Bucey 


June , 


-19- 


49 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


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COHUUKITY       PBOPEilTY       ^^ 


IHTKCiDUCTIOIT 
VSkT  IS  CCBE  SYSTHi  IH  UASHIEGTOII? 
Coastruotioa  of  Statutes. 

i^utliorities  —  Ballixiger,     CSiaptor  IZ. 


^ca-iieX': 


1 


0.1 


f 


Q^  CONTENTS 


Page 

Ctltline  I-III 

Introduction  I-II 

Bow  should  the  statutes  bo  construed?  1. 

CHAPTER  II 

What  is  the  nature  of  the  consmuttitsr?  18. 
How  is  it  formed? 

CENTER  III 

How  is  it  disaolved?  109. 


CHAPTER  IV      . 

VWiat  are  the  rights  and  powers  of  the  Spouse*^:    •    ;;-■.  190. 

Powers  of  husband  to  nianage  and  control.  ,.■'•.'" 


CHAPTER  V 

PoT/er  of  the  wife  to  ma'iage  or  convey.  254. 

Power  of  wife  to  contract. 


CHAPTER  VI 

Sight  a  of  the  Borvivov,  —  299. 

To  own.        To  administer. 
To  inlierit.     Of  Reimbursement. 

CHAPTER  VII 

Chaiaoter  of  wife'  s  interesrO.  396. 

Can  the  conmunity  Le  altsresi  by  contraci? 


OUTLIHE  OF  COLMJIIITY  PRGPERET. 

Introduction. 

TThat  is  the  System  in  TTasliinston? 

I  Construction  of  Statutes. 

How  should  they  "bo  construed? 

II  TThat  is   the  nature  of  the  Coramunity? 

a.     Is  it  a  partnership? 
"b.     Is  it  an  entity? 

A.  How  is  it  formed? 

a.     By  lav/-ful  marriage. 

t.     Is  more  tlian  the  mere  fact  of  marriase  necessary? 

B.  How  is  it  dissolved? 

a.  By  separation  —  either  through  separation  agreement  or 

merely  in  fact. 

h.  By  divorce. 

c.  By  death. 

C.  What  are  the  rights  and  powers  of  the  spouses? 
a.  Powers  of  Hustand  to  Manage  and  Control. 
l3.  Power  of  the  vafe  to  Manage  or  Convey. 

c.  Power  of  the  wife  to  Contract. 

d.  Rights  of  Survivor. 

1.  To   oxsn  —  half  or  all. 

2.  To  convey   in  parent  of  debts. 

3.  To  administer. 

4.  To  inherit, 

e.  Sight  of  Wife  to  Love  and  Affection  of  HusTDaod  and  to 
Reconciliation. 


II. 


OOiCLIES  OP  COI.illUHITY  PRGPER3Y 
(COHTinnED) 


f.  Right  of  Eeiin"btirsement . 

g.  Character  of  Wife's  Interest. 

h.  Ciiaracter  of  the  Hustand's  Interest. 

i.  Can  ThQse   Interests,  or,  in  other  words.  Can  the  Comratinity 
"be  Altered  hy  C£on tract? 

D.   TThat  are  the  Interests  of  the  Spouses? 

a.  TJhat  is  Coinmunity  Property? 

"b.  VhsLt   is  Separate  Property? 

Ill  D.       a.  'Sniat  is  Community  Property? 

1.  Property  acquired  after  marriage  hy  purchase. 

2.  Damages  for  injuries. 

3.  Property  acquired  hy  occupancy, 

4.  Property  acquired  after  marriage  "by  prescription. 

5.  Property  acquired  hy  accretion. 

6.  Property  acquired  "oy  accretion  and  confusion. 

7.  Property  acquired  by  contract. 

8.  Property  purchased  on  credit. 

9.  Proceeds  of  insurance  policy. 

10.  Property  acquired  hy  illegal  means. 

11.  Property  acquired  in  a  foreign  state  or  country. 
Ill  D.   Tj.   Wliat  is  Separate  Property? 

1.  Property  and  pec^Jniary  rights  ovvTied  hy  the  hushand 
before  marriage,  "The  property  and  pecuniary  rightF 
of  every  narried  \7Dman  at  the  time  of  her  marriage." 

2.  Property  and  pecuniary  rights  acquired  "by  either 
spouse  during  marriage  by  gift,  devise,  or  descent. 


'•rv?- 


III. 


ouuiuE  OF  coiiruniTy  PEOPiiR^rr 

{COHTIIjIO)) 


3.  All  property  and  pectmiarj'  rights  acquired  by  eitluer 
spouse  in  e:;chan5e  for  separate  property  or  funds. 

4.  Bio  rents,   issues  and  profits  of  separate  property. 

5.  Property  acc^uired  03^  either  spouse  under  law  -which 
en:cludes  necessary  legal  incidents  of  cocmon  property. 

6.  Property  acquired  hy  either  spouse  "by  conveyance  or 
transfer  directly  from  tlae  other. 

7.  Property  acquired  by  the  -vife  tlirough  a  conveyance 
to  her  xdiich  recites  that  the  goods  belonged  to  her 
separate  estate,   or  which  liMts  the  property  to  her 
separate  uses,   and  -naiich  ■•.Tas  directed  to  bo  made  to 
her  by  her  husband. 

8.  Property  accuired  in  a  foreign  state  or  country  and 
there  laaovni  as  the  husband's  property  or  his  separate 
property  or  as  the  wife's  separate  property. 

9.  Ihe  personal  earnings  of  the  wife  isGien  living  separate 
and  apart  from  her  husband. 

10.  tChe  conmonity  property  law  is  not  applicable  to  prop- 
erty rights  'vVhich  are  acquired  prior  to  its  passage. 

Ill     E.      V/liat  are  the  liabilities  of  tlie  Spouses? 

1.  Wiiat  are  separate  liabilities? 

2.  YThat  are  conaaunity  liabilities? 

3.  TiThen  is  cocitmjnity  property  liable  for  separate  debts? 

4.  ¥]aen  is  comnunity  liable  for  torts? 

5.  Yfeen  is  separate  property  liable  for  conmunity  debts 
or  torts? 

Ill     P.  1.     Homesteads. 

S-     Miscellaneous. 


COMlIUiriTY      PROPERTY 

lUTECiDUOTiaEr 
I3IAT  IS  THE  SYSTSi  IH  U^HTIICtTOII? 
Construction  of  Statutes. 

Authorities  —  Ballinger,     Chapter  IS. 


iNTROrUCTlOH. 


252.  ••The  community  eyotera  from  the  fact  that  its  cardinal  principles 
are  based  upon  the  separate  identity  of  the  apousea  and  their  mutuality  of 
interest  in  all  marital  acquiaitiona,  as  opposed  to  the  common  law  doctrine 
of  the  merger  of  the  identity  of  the  wife  in  that  of  the  husband  renders 
it  absolutely  imcompatible  with  the  law  of  property  rights  of  married  per- 
sons as  administered  under  the  common  law," 

ibower  and  curtesy  are  expressly  abrogated. 

Code  sections  1343  &  5922. 

Even  vi/here  not  expressly  repealed,  Judge  Ballinger  is  of  the  opinion 
that  the  two  systems  are  so  "utterly  incompatible"  that  the  common  law 
system  must  be  regarded  as  impliedly  abrogated.  253. 

The  community  property  system  may  be  said  to  be  in  derogation  of  the 
common  law.  The  rule  of  construction  in  such  case  is  that  the  statute  in 
derogation  must  be  construed  strictly. 

"The  basis  of  the  rule  is  that  "the  legislature  is  presumed  to  have 
expressed  the  limit  intended  to  be  conceded  to  such  departure  from  the 
common  law  by  the  expressions  and  terms  of  the  enactment  itself,  and  to 
have  inhibited  a  construction  of  intendment  enlarging  its  scope  or  mean- 
ing. "Ballinger,  see  254. 

Ballinger  and  Bemington's  Code  143  recognizes  possible  incompatibil- 
ity between  over   statutory  aclierae  and  the  common  law,  for  it  says: 

"The  common  law,  so  far  as  it  is  not  inconsistent  with  the  constitu- 
tion and  laws  of  the  United  States,  or  of  the  state  of  Washington,  nor 
incofiipatible  with  the  institutions  and  conditions  of  the  society  on  this 
state,  shall  be  the  rule  of  decision  in  all  the  courts  of  this  state." 

Recognizing  also  the  doctrine  of  strict  construction  of  all  statutes 
in  derogation  of  the  common  law,  the  code,  see  144,  provides: 

"The  provisions  of  this  code  shall  be  liberally  construed  and  shall 
not  be  limited  by  any  rule  of  strict  construction."  and  again  in  5923 
B.  &  E: 

"The  rule  of  the  comnion  law  that  statutes  in  derogation  thereof  are 
tc  be  strictly  construed  has  no  application  to  this  chapter.  This  chapter 
establishes  the  law  of  this  state  reEi:ecting  the  subject  to  which  it  re- 
lates, and  its  provisions  and  all  proceedings  under  it  shall  be  liberally 
construed  with  a  view  to  effect  its  object." 

And  yet,  in  spite  of  the  plain  wording  of  these  statutes,  we  find 
Stiles,  J.  in  Board  of  Trade  vs.  Hayden,  4  Wash.  263  at  265  saying: 


II. 

IWG."S0DUCT1C'K. 

"prior  to  the  act  of  1G81,  but  for  the  acts  commencing  1869,  the 
common  lav-  would  have  regulated  the  property  rights  of  husbal^d  and  v/ife. 
It  did  then  and  still  does  regulate  thera  excepting  so  far  as  the  statute 
has  directed  otherwise;  and  notwithstanding  that  this  act  provides  that 
the  "rule  of  the  common  la\/  that  statutes  in  derogation  thereof  are  to 
be  strictly  construed  has  no  application  to  this  act."  It  is  not  to  be 
supposed  that  the  legislature  intended  or  proposed  to  extend  the  scope 
of  the  act  beyond  the  language  used  further  than  the  implications  natural- 
ly floivlng  therefrom-" 

To  this,  at  p  283,  Dunbar ,  J.  dissenting,  replied: 

"As  shov;ing  the  danger  of  leaving  the  ^Icin  provisions  of  the  statu- 
tory lav/,  1  note  the  fact  that  the  majority  recite  at  length  the  provisions 
of  the  common  law,  and  draw  deductions  from  its  cnalogies,  vhen  the  act 
in  question,  to  avoid  the  very  thing  which  the  court  now  insists  on  doing, 
provides  especially  that  the;  "rule  of  common  law  that  statutes  in  deroga- 
tion thereof  are  to  be  strictly  construed  has  no  application  to  this  chap- 
ter. This  chapter  establishes  the  la'./  of  this  territory  respecting  the 
subject  to  which  it  relates,  sn&   its  provisions  and  all  .proceedings  \inder 
it  shall  be  liberally  construed  with  a  view  to  effect  its  object."  Tlie 
legislature  evidently  attempted  to  emancipate  this  law  from  the  rule  of 
construction  nov;  insisted  upon  by  the  court;  and  the  plain  rtile  of  con- 
struction provided  ty  the  legislatxire  is  waived  aside  by  the  remark  that 
"it  is  not  to  be  supposed  that  the  legislature  intended  or  proposed  to 
extend  the  scope  of  the  act  beyond  the  language  used  further  than  the  im- 
plications natTorally  flowing  therefrom.  "I  think  that  it  is  to  be  pre- 
sumed that  the  legislature  realized  the  fact  that  it  was  enacting  a  stat- 
ute in  derogation  of  the  common  law,  and  that  it  did  not  v/ant  the  law 
hampered  by  the  rule  of  construction  mentioned,  it  seems  to  me  that  the 
language  of  2417  is  also  so  plain  that  there  is  no  room  for  construction. 
In  fact,  tt  seems  that  if  the  £>l<iin   pro'-'isichs  of  this  lav/  can  be  argued 
out  of  existence,  all  the  lawa  of  the  state  are  at  the  mercy  of  judicial 
construction." 

Judge  Ballinger  is  clearly  of  the  opinion  that  the  common  law  cannot 
aid  in  the  interpretation  of  the  community  rights.  £ec.  253,  4. 

A  general  rule  of  construction,  also,  is  thct  where  a  State  adopts 
the  laws  of  another  state  or  nation,  the  construction  of  those  laws  as 
pronoxmced  by  the  parent  state  accompany  and  form  an  integral  part  of 
the  same. 

But  this  rule  is  not  follo'v/ed  in  Lumber  Co.  vs.   ITcChesney.  1  Vash, 
609  because  it  is  said  the  decisions  were  contrary  to  the  plain  import  of 
the  statutes." 


BO/JiD  OP  IMDE  V.  H/iYDEN 

4  V/ash.  263  1892 
Appeal  from  Superior  Court,  v/hatcom  County 

The  facts  aro  stated  in  the  opinion.  The  opinion  of  the  court  v/as 
delivez'ed  by 

STILES,  J.-  These  vers  four  cases  the  trials  of  v/hich  •vere  consol- 
idated. In  t'.vo  of  the  cases  the  theorj'-  of  the  complaints  -as  that 
appellant  and  her  husband  ^-ere  actual  partners  in  the  mercantile  business 
under  the  firm  narce  of  J. P.  Hayden  <1  Co.   In  the  other  tv;o  the  theory 
Y;as  that  the  ccnimvjiity  composed  of  the  husband  and  vife  v;as  carrying  on 
business,  and  that  the  husband  and  wife  ■^vere  its  agents.  The  evidence   ^- ^ 
did  not  tend  to  support  either  theory  as  pleaded,  but  -,  as  directed 
•wholly  to  an  effort  to  shov;  that  J. P.  Hayden  r.as  doing  bi^siness  under 
the  name  of  J.P.  Hayden  &  Co.,  and  that  appellant  raade  herself  liable 
as  a  partner  by  "holding  out."  The  real  object  in  raaicing  appellant  a 
part3%  and  talcing  judgment  against  her,  v;aE  to  subject  certain  real 
dst'tte  r;hich  she  claims  is  her  separate  property,  to  the  paynent  of 
debts  incurred  by  J. P.  Hayden  &  Co.  The  main  guestJ.on  involved  is.  Can   ->, 
a  hu'-,bond  and  v;ife  become  partners  in  trade  in  this  state?  It  is 
cl_aiujed  that  they  maj'  under  the  act  of  November  21,  1881,  conmonly 
knovn  as  chapter  133  of  the  code  of  that  year.  Of  that  chapter  the 
following  sections  are  supposed  to  be  especially  pertinent  to  the  matter 
in  hand: 

'•Sec.  2396.  Every  married  person  shall  hereafter  ha.ve  the  same 
right  end  liberty  to  acquire,  hold,  enjoy  and  dispose  of  every  species 
of  property,  and  to  sue  a;ad  be  sued,  as  if  he  or  she  '-erG  unmarried." 

"Sec.  2398.  All  lav.'s  vhich  impose  or  recognize  civil  disabilities 
upon  a  pife,  which  are  not  imposed  or  recognized  as  existing  as  to  the 
husband,  are  hereby  abolished,  and  for  any  unjust  usurpation  of  her 
natural  or  property  rights,  she  shall  have  the  ssime  right  to  appeal  in 
her  ov7n  individual  name,  to  the  courts  of  law  or  equity  for  redress 
and  protection  that  the  husband  has." 

"Sec.  2400.  The  property  snd  pecuniary  rights  of  every  nr.rried 
"'onan  at  tne  ti:.-.e  of  h^r  ri:c.rriage,  or  alten'^rds  acquired  by  gift,  de- 
vise or  inheritance,  vith  tlie  rents,  issues  and  profits  thereof,  shall 
not  be  subject  to  the  debts  or  contracts  of  ner  husband,  and  she  may 
manage,  lease,  sell,  convey,  encnmber  or  devise  by  v, ill  such  property 
to  the  saiue  e;ctent  and  in  the  saiT.e  manner  tliat  her  husband  can  property 
belonging  to  him." 

'•Sec.  2i01.  Should  either  husband  or  r/ife  obtain  possession  or 
control  of  property  belonging  to  tlie  other,  either  before  or  after 
marriage,  the  ov.'ner  of  the  'property  may  maintain  an  action  therefor,  or 
for  axiv   ri;-,ht  growiiig  out  of  the  sar.:ie,  in  the  s?x.e  r:an:.er  and  to  tic 
sarre  extent  as  if  thei'  vere  uraiarried." 

"Sec.  2406.  Contracts  may  be  made  hi'-   a  vife  snd  liabilities  in- 
curred, and  the  sane  i^aj'  be  enforced  by  or  against  her  to  t:.e  same  ex- 
tent and  in  the  same  mariner  as  if  she  \ere  tuunarried.  ■' 


2. 

Prior  to  the  act  of  1861,  but  for  the  acts  commencing  in  1669,  the 
cormon  lav;  rould  have  regulated  the  property  rights  of  hustiand  and  wife. 
It  did  then  and  still  does  regulate  them  excepting  so  far  as  the  statute 
has  dr.rected  othenvise;  and  not  withstanding  that  this  act  provides  in 
Sec.  2417  tiaat  the  "rule  of  common  law  that  statutes  in  derogation 
thereof  are  to  be  strictly  construed  has  no  application  to  this  act," 
it  is  not  to  be  suppoced  that  the  legislature  intended  cr  proposed  to 
extend  the  scope  of  the  act  beyond  the  language  used  further  than  the 
implications  naturally  f lo-.ving  therefrom,  ^..t  the  common  lav?  a  wife 
could  not  be  a  partner  in  business  with  any  one,  because  partnership  is 
based  on  a  contract,  as  to  which  she  was  under  a  disability,  and  yet  in 
equity  she  had  alv/ays  been  permitted  to  enforce  contracts  made  for  her 
benefit,  even  ■■ith  her  husband,  and  her  claim  against  him  as  her  debtor 
had  always  been  sustained.  Story,  Zq.  Jtir. ,  Sec.  1372,  1373;  Valensin 
V.  Valensin,  28  Fed.  Rep.  599;  Clark  v.  Hezekiah,  24  Fed.  Rep.  663; 
Huber  v.  Huber's  ..djnr. ,  10  Ohio,  372.  She  could  have  a  separate  estate, 
meaning  an  equitable  estate  held  by  a  third  person  in  trust  for  her. 
This  estate  she  could  charg-e  in  equity,  but  not  at  lav/.  Judgments  upon 
her  debts  went  not  against  her  person,  vjhen   allowed  at  law,  but  were 
allored  as  eqiutctle  burdens  upon  her  estate  or  personal  property  in 
possession  at  the  tirue  of  the  marriage,  and  that  acquired  afterward;  her 
choses  in  action  when  reduced  to  possession,  and  her  earnings  becaii-.o 
her  husband's;  in  her  freeholds  and  lands  in  fee  the  husband  took  a  life 
estate;  he  became  liable  for  her  antenuptial  debts  and  jointly  with  her 
for  lior  torts  during  coveture;  her  responsibility  at  law  for  contracts 
was  entirely  svispended;  and  in  equity,  before  the  courts  vould  hear  any- 
thing against  her,  it  mvist  appear  tliat  she  v;as  possessed  of  a  separate 
estate  in  the  common  law  sense.  Kov  this  act  of  1881_  does  certain 
things  for  a  married  woman:  First,  It  gives  her  full  dominion  over  her 
ovn  property  \.hether  acquired  before  or  after  marriage,  to  enjoy  and 
dispose  of  it  without  the  intervention  of  her  husband,  or  responsibility 
for  him  or  his  debts;  second,  it  removes  frou   her  all  civil  disabilities 
not  imposed  upon  her  hiisband;  third,  she  can  sue  and  be  sued  as  if  she 
were  unmarried,  either  at  lav  or  in  equity;  foarth,  for  ner  debts  she 
alone  is  responsible;  fifth,  her  property  is  chargeable  with  family  ex- 
penses. In  sliort,  the  purpose  of  the  act  seeiriE  to  be  .  to  set  her  frea 
from  all  influence  or  dominion  of  her  husband  in  so  far  as  her  property 
"Ti^ts^af'e^oncernedT" end  leave  lier  to  manage,  control  and  dispose  ofV 
them  as  slie  pleases,  -he the r  to  her  gain  or  loos_. 

In  this  opinion  ve  slia.ll  not  discuss  the  qviestion  how  large  her 
po>'er  is,  but  confine  ourselves  to  the  single  matter  before  us.  Counsel 
for  respondents  contend  tliat,  as  it  is  the  evident  purpose  of  these  pro- 
visions to  emancipate  the  wife  from  the  control  of  the  husband,  and  to 
enfranchise  her  with  zle   peer,  denied  to  her  under  the  common  law,  to 
acquire,  hold,  enjoy  and  dispose  of  property,  and  do  business  on  }ier  ovm. 
account  as  freely  as  he  can,  or  even  more  freely  than  he  can,  under  the 
same  act,  it  must  follov;  that  she  can  enter  into  a  contract  of  partner- 
ship in  all  tiTe  ways,  and  v;ith  all  the  liabilities  that  her  hxisbsiid  can., 
and  that  unless  she  is  permitted  and  held  to  be  able  to  enter  into  tl-fi 
saiie  contracts  with  hiir.  that  she  can  ^  ith  others,  she  is  deprived  of  the 
full  measure  of  liberty  i-raich  the  law  intends  to  confer  upon  her. 


3. 

It  may  be  said  that  she  can  and  in  some  cases  will  be  held  to  become  a 
genoral  .'')artner  'Wjth  third  xziersons  under  the  terms  of  the  act,  a-ad  the 
necetisary  inplicaticns  thsreof.   It  has  been  so  held  in  Ile-.Mnan  V.  Morris, 
52  Miss.  402;  Abbott  V.  Jackson,  43  Ark.  212,  and  elsev.-here,  v.hen  no  one 
of  the  ;fersons  en^ja^^ed  v;ith  her  as  partners  vas  her  husband.  ?nt   the 
questiori  still  regains,  does  the  statute  intend  that  she  can  enter  into 
ordinary  contracts  vith  her  husband,  and  particularly  the  contract  of 
partnership?  On  th:' s  point  we  think  the  positron  of  the  respondents  is 
antagonistic  to  itself.  In  the  foreground  of  the  dir.cussion  is  xalaced 
the  proposition  that  the  purpose  of  the  statute  is  to  free  the  wife 
from  the  control  and.  influence  of  husband  and  to  relieve  her  property 
from  Ms  debts  and  management;  but  the  next  following  suggestion,  tlis.t 
unless  she  cpn  becomo  bis  n^rtver  she  '-ill  not  be  r/holly  free,  if  yielded 
to  will  place  her  antl  her  property  r  ithin  touch  of  the  very  dangers  which 
it  is  sought  in  the  lirst  place  to  withdraw  her  from.  Her  improvident 
husband,  by  the  most  ordinary  persuasion,  or  by  his  mere  declaration 
made  in  her  presence,  as  in  the  case  at  bar,  could,  in  spite  of  her, 
unless  she  assumed  a  hostility,  which  would  endanger  the  continuance  of 
the  marriage  relation,  ^'aste  and  dissipate  her  entire  estate,  and  thus 
the  very  purpose  which,  it  seems  to  us,  strnds  out  the  most  clearly  in 
the  act  in  question,  i.e.  to  secure  her  protection  in  the  management 
and  enjoyment  of  her  estate,  would  be  defeated. 

In  Massachusetts  the  married  woman's  property  acts,  which  existed 
until  1874,  when  the  legislature  expressly  forbade  husband  and  wife  to 
contract,  provided:  "Any  -'oman  may,  v;hile  married,  bargain,  sell  arji 
convey  her  real  and  personal  property,  which  may  be  her  sole  and  sep- 
arate property,  or  which  may  hereafter  come  to  her  by  descent,  devise, 
bequest  or  gift  of  any  person,  except  her  husband,  and  enter  into  any 
contract  in  refereixe  to  the  sane,  in  the  same  manner  as  if  she  "'ere 
sole;"  and  "an3'-  inarried  w'oman  may  carry  on  any  trade  or  business,  and 
perform  any  labor  or  services  on  her  own,   sole  and  separate  accoimt; 
and  the  earnings  of  any  married  woman  from  her  trade,  business,  labors 
or  services  shall  be  her  sole  and  separate  property,  and  may  be  used 
and  invested  by  her  in  her  ov.'n  name;  and  she  may  sue  and  be  sued  as 
if  sole  in  regard  to  her  trade,  business,  etc.,  and  her  property  ac- 
quired by  her  or  her  trade,  etc.,  may  be  taken  on  any  execution  against 
her."  This  act  covers  every  raaterial  point  of  our  own,  aiid  notably  the 
wife  if?  peruitted  to  make  "any  contract"  in  reference  to  her  property; 
whichis  all  that  any  person  can  do.  But  in  Lord  v.  Parker,  3  Allen, 
127,  it  was  held  tlis-t  she  could  not  be  a  partner  in  a  firm  where  her 
husband  \:a.s   a  partner.  Speakir^  of  the  statutes  the  court  said; 

"Their  legal  object  is  to  enable  married  women  to  acquire,  possess 
and  manage  property,  without  the  intervention  of  a  trustee,  free  from 
the  interference  or  control,  and  vitboiit  liability  for  tbe  debts,  of 
their  husbands.  They  are  in  derogation  of  the  common  law,  and  certainly 
are  not  to  be  extended  by  construction,  i.nd  ^e  cannot  perceive  in  them 
any  intention  to  confer  upon  a  married  woman  the  poi..er  to  aajze   any  con- 
tract with  her  husband,  or  to  convej/-  to  hun  any  property,  or  receive 
any  conveyance  from  him.  The  po''er  to  form  a  copartnership  includes  the 
po'./er  to  create  a  coi^imujaity  of  property,  with  a  joint  power  of  disposal 


4. 

and  a  mutual  liability  for   tlio  contracts  and  acts  of  all   tlio  partners. 
To   enter  into  a  partnership  in  'businoCE  vath  her  husband  would  subject 
her  proper ty  to  his  control  in  a  niaanor  hardly  consistent  v/ith  t]ic  sep- 
aration vjiich  it  is   the  purpose  of  the   statute  to  secure,   and  misht 
Eu^ject  her  to  an  indefinite  liability  for  his   engagcnents.     Tlio  prop- 
erty invested  in  such  an  enterprise  would  cease  to  be  her  "sole  and 
Eoparato"property.     The  power  to  arrange  the   terras   of  such  a  contract 
would  open  a  wide  door  to  fraud  in  relation  to  the  prapcrty  of  the  hus- 
band.    If  she  could  contract  vdth  her  husband,   it  vjould  seom  to  follow 
that  she  could  sue  him  and  be   sued  by  him.     How  such  suits  could  be 
conducted,    vdtli  the  indidents   in  respect  to  discovery,   the  right  of 
parties   to  testify,    and  to  call   tlie   opposite  party  as  a  vatness,  vath- 
out  interfering  vath  the  rule  as  to  pri-.-ate  communications  bet\/ccn  the 
husband  and  vlfo,    it    is  not  easy  to  perceive-,   and  the  consequences  wliich 
viDuld  f ollov7  in  respect  to  process  for   the  enforcenunt   of  rights  fixed 
by  a  judgment,  arrest,    imprisonment,   chai-ges  of  fraud,   proceedings  in 
invitum  under  the   insolvent  laws,   and   tlie   lite,   are  not  of  a  cliaractor 
to  bo  readily  reconciled  vdth  the  marital  relation.     \7c  ccainot  suppose 
that  an  alteration  in  the   law  involving  such  momentous  results,   and  a 
cliangc  so  radical,  could  have  been  contemplated  by  the   legislature, 
without  a  mucli  more  direct  and  clear  manifestation  of   its  will." 

To  tho  sane  effect  is    Gic  construition  of  the  siiBilar  statute  by 
the   suprcmG  court  of    tJio  State    of  Haine.     T^mith  v,    Gorman,   41  He.  405; 
LIoKeen  v.  Frost,  46  lie.   239.      In  I'.ichigan,   Hov;ell's  Stat.,  Sec.   6295, 
provides  that  the  separate  property  and  estate   of  a  married  v/oraan   ''may 
bo  contracted,   sold,   transferred,  mortgaged,  conveyed,  devised  or  be- 
queathed to  her,   in  tho  same  manner  and  mth  the  lilm  effect  as  if  she 
were  unmarried."     And  Sec.   6297  provides   that   "actions  may  be  brought 
by  and  against  har  in  relation  to  her  sole  property,    in  the  same  manner 
as  if  she  were  unmarried."     It  is   true  that  these  provisions  in  tlic 
Ilichigan  statute   (and  those   of  several  other  states)  spealc  particularly 
only  of  her  separate  estate,  but  licr  separate  estate  is  by  Soc.   6295 
expressly  defined  to  be  tho   same  as  tliat  whicli  is  equally  her  separate 
property  in  this  state;  but  if  slic  be  thus  enabled  to  contract  vath  ab- 
solute freedom  in  refercnco  to  her  separate  estate,   then,   according  to 
tho  logic   of  respondent's  argument,  her  freedom  in  tint  respect  v;ould 
be  unlawfully  curtailed  by  holding  that  she  could  not  contract  -.Ith  ref- 
erence  thereto  with  her  husband.     Yet  the   supreme  court  of  Ilichigan, 
in  Artman  V.  Ferguson,   73  Ilich.   146    (40  NA7.  Rep.   907),   after  alluding 
to  decisions  in  other  states  v/herc   it    is  held  that  a  mrrriod  woman  inay 
bo,  where   she  has  separate  estate,   a  partnci  with  persons    otlaor  tl'^an 
her  husband,   uses   this   language: 

"It  is   Gic  purpose  of  tlieso  statutes   to  secure  to  a  raarried  v;oman 
the  rigit  to  acquire  and  hold  property  sopcxatc  from  her  husband,   and 
free  from  his   influence  and  control,   and  if  she  might  enter  into  a 
business  partnership  with  her  husband  it  would  subject  her  propertj^  to 
his  control  in  a  manner  vholly  inconsistent  with  the  separation  vZiich 
it  is  tho  purpose  of  the  statute  to  socuro.,   and  might  subject  her  to  an 
indefinite  liability  for  his  cngagonents.     A  contract  of  partnersliip 
vath  her  husbancL  is  not  included  within  the  po-.^er  G;ranted  by  our  statute 


5. 

to  married  women.  This  doctrine  rras  laid  dov?n  in  Bassett  v.  Shepard- 
Gon,  52  Mich.  3,  and  re  see  no  reason  for  departing  fron  it.  The  im- 
portant and  sacred  relations  between  man  and  v.ife,  which  lie  at  the 
very  .foundation  of  civilized  society,  are  not  to  be  disturbed  and  des- 
troyed by  contentions  vhich  nay  arise  from  such  a  coiniriunity  of  property 
and  a  joint  pov/er  of  disposal  and  a  niutual  liability  for  the  contraxjts 
and  obligations  of  each  other." 

In  Indiana,  under  the  third  section  of  the  act  of  I.Iarch  25,  1879, 
it  was  provided  that  a  married  \voinan  might  enter  into  anj-  contract  in 
reference  to  her  separate  personal  estate,  trade,  business,  labor  or 
services,  and  the  management  and  iiiiprovement  of  her  separate  real  prop- 
erty, the  sajiie  as  if  she  \jere  sole,  and  her  separate  estate,  real  and 
personal,  should  be  held  liable  and  on  execution  sold.  But  in  Kass 
V.  Shaw,  91  Ind.  384,  and  in  Scarlett  v.  Snodgrass,  92  Ind.  262,  it 
v;as  distinctly  hold  that  she  could  not  bind  herself  by  a  contract  of 
copartnership  rith  her  husband.  These  citations  from  eminent  co-urts 
are  sustained  in  Schouler's  Husband  and  life.   Sec.  517,  and  2  Bish. 
Married  V/omen,  Sec.  435. 

Opposed  to  those  adjudications  counsel  cites  us  to  a  line  of 
authorities  of  v.hich  Hay  v.  May,  9  Keb.  16  (2  IT.V/.  Rep.  221),  is  a 
sample.  There  a  husband  made  and  delivered  his  promissory  note  to  a 
third  party,  vho  endorsed  and  delivered  it  to  the  maker's  wife,  and  a 
second  note  he  rnade  directly  to  his  wife.  She  brought  an  action  at 
law  against  him  on  both  notes,  and  the  court  held  that  the  demurrer 
of  the  V'ife  to  the  husband's  ans'-er  setting  up  the  marriage  of  the 
parties  in  the  nature  of  a  plea  of  abateir^nt  should  ha^e  been  sus- 
tained. The  statutes  of  that  state  with  regard  to  the  separate  prop- 
erty of  married  v;omen  are  substantially  the  same  as  our  orn,  and  we 
see  no  reason  for  dissenting  from  the  views  therein  expressed,  and  the 
conclusions  therein  arrived  at.  The  holding  of  the  ooiirt  was  in  effect 
simply  to  substitute  an  action  at  lav   for  a  suit  in  equity.  In  its 
decision,  on  page  226,  the  court  said: 

"Even  under  the  old  system  of  practice,  and  before  the  benefi- 
cent legislation  defining  the  rights  of  married  women  herein  quoted, 
this  could  hare  been  done  by  resorting  to  the  circuity  of  proceeding 
in  the  name  of  the  trustee  cind  a  court  of  equity.  But  now  not  only 
is  the  administration  oi  la.\'   and  equity  vested  in  the  one  court,  but 
all  forms  of  procedure  vhich  heretofore  distinguished  legal  and  equi- 
table suits  are  abolished,  and  the  need  of  the  intervention  of  a 
trustee  is  done  a- "ay  'ith  by  the  statute  'hich  provides  tliat  "every 
action  must  be  prosecuted  in  the  name  of  the  real  party  in  interest." 

But,  notvithstanding  these  cases,  and  the  doctrine  establsihed 
by  then,  no  case  is  cited,  and  we  have  not  been  able  to  find  one  in 
which  either  husband  or  ■  ife  has  been  permitted  either  at  law  or  in 
equity  to  enforce  a  purely  e:cecutory  contract  against  the  other,  and 
in  thc'.t  lies  the  kernel  of  this  controversy,  because  such  a  contract 
must  be  enforcible  by  both  parties,  and  at  its  beginning  it  is  entirely 


executory.      The   toiins  of  the  pai-tnersMp  may  be   tliat   it   sliall 
continue  lor  c.  certain  leuf-^tli  oi    time,    that  certain  capital   slicll  "be 
iuirestod,   that  the  cervioec  of  the  part  ice   to  the  contract  chall  be 
devoted  to  the  busincbs  of  the  partnership,    that   the  profits  and 
losses  of  tjie  'business   shall  be  divided  equally  or  in  certain 
proporttor-s,   and  ,jiany  others,  all  of  which  are  executory,  and  some 
of  '.-liich  ere  abEOlr.teljr  iudispeusible  to  the  prosecution  of  any 
partnership  ''ausiness  to  advantage.     It  is  also  insisted,   and  citations 
are  made  to  authorities  to  shov;  that   the  husband  and  v/ife  in  states 
where  the  doctrine  of  coninunity  property  prevails,   are  in  a  sense 
partners  at  all  events.     One  of  the  citations  is  Fuller  v.  Fersiison, 
26  Cal.   54";,   and  another  is  Schnidt's  Civil  Lav/  of  Spain  and  Ilexico, 
but  turning   to  Fuller  v.  Ferguson,  pa^e  567,  we  find  this  language: 

■'The  la\/  recotrnises  a  partnership  betv/een  the  husband  and  wife 
as  to  the  property  acquired  d-uring  marriage,  and  which  e::i5ts  until 
expressly  i-enounced  in  the  raaimer  prescribed.     To  this  comi-nunity  or 
pai'tnership  belongs:   First,  .'.11  the  property,   of  'whatever  nature, 
v/hich  the  spouses  accpaire  by  thoir  o^rn  labor  and  industry.     Second, 
'i'he  fruits  a^id  income  of  the  individual  property  of  the  husband 
and  vdfe.     Third,  V/hatever  the  liusbaniS.  gains  by  the  e::ercise  of  a 
profession  or  office.     Fourth,   Tiie  gains  from  the  money  of  the  spouses, 
althou^ui  the  capital  is   the  separate  property  of  one  of  them." 

It   is  scarcelj'-  necessary  to  say  that  because  the  relation  of 
hvisband  and  \;ife  as  to  their  coraTion  property  is  likened  to  a  partner- 
ship,  the  reason  for  the  similitude  is  totally  wanting  when  their 
separate  property  is  concerned. 

Lut  the  respondent  x^roduces  tv/o  decisions  of  Uev;  York 
and  Llississippi,  respectively,  which  eir^a-ecsly  hold  that  a  husband 
and  v/ife  may  be  paitners.     Euau  v.   Caffo,   122  H.Y.   308    (25  N.Ii.  Rep. 
486);   ^oof  V.  3re'.7er   (Hiss.),   5  South.  :.:ep.571.     The  statutes  of 
Kev/  York  governing  the  former  case  v/ere  almost  identical  v/ith  those 

of  Liaseachucetts  above  ruoted.     Husband  and  v/ife  filed  a  certificate 
by  v/iiich  they  r-ssumed  to  form  a  limited  partnarsh-ip  under  the  firm 
name  of    'C-eorge  Gaffe-/'  the  husbsuid  ./as  the  genei-al  and  the  v/ife  the 
special  partner,    che  contributing  t\Ajnt3r-f ive  thoucand  dollars.     Tlie 
i^ir;j  bccij.ic  indebted,   and  both  lva^\  ::■('.  j.nd    .Ifu  ■  rcvz  cued.      The 
court,  .-.iter  revio'.lng  ITdw  York  car.o:.  only,    ^aid: 

•"'upon  principle  end  authorit;-,  v/o  think  tliat  vfsiyn.  a  husband  and 
v/ifo  a:.t-UiaG  to  cz'^'-z  on  c  b-cincw-  _.>.  partner::,  and  contract  debts  in 
thj  course  of  it,    the    1x3  CcOmot     Gsc?.pe  liability  on  the  ga-ound  of 
coverti^:i-s»'- 

Eiis,   as  is  soen  b^-  tlia  f'^.cts  ?bove  stated,  v/as  an  e::tremo  cane 
in  \*iich  the  '  'ifc  had  by  a  .;oloun  instraaent  placed  upon  file  among 
public  records,   shovn  her  intontio:i  ox  assiiming  a  partnership  relation 
v/ith  her  hutband,  and  contributing  to  the  fixiii  largo  cuiiis  of  monoy. 
vyiiether  or  not   the  firr.  './as  insolvent  is  not  disclosed;   all  that 


7.  i 

appearn  is  that  she  v/as  retained  as  a  party  "to  the 'action.  But  v/o  find 
that  of  the  cavea  juclges  of  the  New  York  court  of  appeals  "but  ff.i.r  joined 
in  the  opiniou.  -/hile  tli^-ee  uicsent  on  ta?  very  poii^  in  quar.t-i.ou. 
KaiG'ht,  J.,  in  his  diceenting  opinion,  reviews  the  course  of 
decision  in  the  State  of  ITev;  York,  as  well  as  in  Either  otates,  and  cones  ;. 
to  the  conclusion  -.'hic:!  is,  v.e  thinic,  unascailatleV  that  the  majority 
opinion  '.vac  '.vro'ng.     Tlie  decision  in  this  case  is  to  us  a  curious  one, 
inasmuch  at  ".'e  find  the  sai^e  court,  only  one  year  previous,  in  the  case 
of  Hendricks  v.  Itaacs,  117  ll.Y,  411  (22  H.E.  ?ep.  1029),  holding  Vy  a 
unaniiTiouE  court  that  under  these  same  statutes  a  husljand  and  wife  cor.ld 
not  contract  uitli   each  other  at  all.  Toof  v.  Bre-./er  was  a  controversy 
which  './as  controlled  by  the  statutes  of  Arkansas,  \/hich  axe   again  almost 
en:act  duplicates  of  thote  of  Jiaesachusetts.  The  court  o,fter  alluding  to 
^'.bbott  V.  JaciT.on,  45  lUrk.  212,  in  viiich  it  was  held  that  a  married 
woman  could  "becor.ie  a  partner  as  a  sole  trader  v;igh  a  third  person  other 
thca  her  huGlDaud,  ^jid  would  as  to  her  propertjr  "be  bound  by  all  the 
contracts  of  the  firui  a&  effectualljr  and  to  the  saine  e:.:tent  as  if  she 
'..'ere  a  man,  disci-sses  cases  in  Massachusetts,  ilev/  Yoi'*;  -**-.  oo^^ci.'  ^.tcitct., 
and  cones  to  C^a  conclusion  that  a  married  womsoi  under  the  la'.v  of 
Arkansas  coold  c.lso  beccae  the  business  partner  of  her  husband.  Just  why 
it  becomes  necesScr3'"  for  the  court  in  this  case  to  decide  this  ciiestion 
is  not  cl9.,r  fro'ra  the  report.  It  is  said  that  the  Brewers,  husband  and 
vdfe,  were  cai'i-pir^^;  on  i-lanting  operations  in  .U-kansas,  and  Toof  and 
others  iTiade  to  thaa  advances  of  supplies,  jlfter  this  tie  Brev;ers  moved 
to  Tennessee,  and  there  gave  to  Toof  and  others  four  notes  in  payment  of 
theindebtednets  due  t';em,  in  'v/hich  notes  lirz   Bre'.ver  charged  her  sepa^'ate 
estate  for  their  payment.  From  tliis  it  'rould  ceem  tliat  the  question  of 
pairtnerchip  \7as  not  necessarily  involved  in  the  case,  but  that  the  real 
question  was  whether  upon  her  note  which  assumed  to  er.pressly  charge  her 
separate  estate,  a  perso'nal  juc'tgrnent  at  law  should  be  entered  against  her. 
The  case  of  ',/ells  v.  Cay/ood,  5  Ool.  -2-69,  is  alco  cited  by  respondents, 
and  the  general  laiigtiage  used  hy   the  court  in  tliat  case,  on  p.  494,  is 
abundantly  broad  enovv^h  to  support  the  citation  were  it  not  tliat  the 
point  in  issiie  had  no  anology  -.fh.s.tevei    to  tliat  of  the  case  at  bar.  "He 
conclude  upon  tlie  whole  tiiat  the  better  reason  as  v;ell  as  authority  is 
with  the  position  tliat  these  married  women's  stat'ates  generally  agree  on 
their  material Ipoints,  and  that  it  v/as  not  intended  thereby  that  a 
husband  and  \/ife  could  become  pai-tners. 

But  in  our  statutes  there  are  one  or  tvjo  provisions  ^'^?lich  we  thin'.: 
;.iake  this  position  clcc^i-e;.-  thc-i  it  is,  perhaps,  in  any  of  the  othe:.  s.. 
Bee.  2597  substantially  ioaket  erch  of .then,  as  to  all  transactions 
b3t\;ean  them,  a  trustee  for  the  otl.e- .  Ths   bui-der  of  proof,  as  b3o^.-3^:■. 
t:;.3;i5  is  upon  the  party  assei-tiiig-  the  good  faith.  Persons  \.-ho  a^e  f-t^e 
to  contract  with  each  other  aie  not  subject  to  such  a  i"ule.  I'hey  st:^:. 
■s..t   Sims  length,  and  rjnless  there  is  actual  fraud  the  law  gives  no  -.eliof . 
.'-.gjin,  it  v-ould  seem  that  if  husbsnd  and  vaie  are  at  liberty  to  couti..ct 
with-  each  other  './ith  perfect  freedom,  as  strangers,  the  provisions  of  £ec . 
2416  would  have  been  left  out.  By  that  section  husband  and  \7ife,  when 
tPey  attempt  to  make  any  agreement  as  to  the  status  or  disposition  of 
the  community  property,  must  do  so  by  the  e.:ecution  of  an  instrument  i"n 
"-itin^,  and  under  seal,  "v/l.ich  must  be  ac:niov;leci^e>..  and  certified,  c*,£- 
a  ^:.3ed  to  real  estate.  "Hxj   co   much  solem-.iity  -./ith  regard  to  her  interest 


r 


■/^    x-'-"^-^*^ 


,    ,-*^ 


.^ii^^^a^^^^^f^ 


a. 


^^ 


^    -^*^ 


e. 

in  commimity  property,  and  such  loosenecs  and  absolute  v/ant  of 
protection  with  regard  to  her  separate  property,  which,  it  is.   concedod 
by  all,  it  was  the  first  pui-poL;e  of  this  act  to  secure  to  her? 

The  case  at  bax'  is,  perhaps,  ac  strong  an  e::ajiiple  as  e:cperience 
could  produce  of  the  evil  effects  of  such  a  construction  of  this 
statute  as  .is  contended  for  by  respondents.  The  wife  held  certain  real 
estate  v;hich  she  oiairas  is  her  separare  property — it  is  all  she  has. 
Thj   husband_en£aged^ in^ a  mercantile  business  in  a  buildins  built  by  her  _ 
upon  her  land,  and  painted  over  the  door  a  sign,  "J.  P.  Hayden  £;  Co."   >  ^^-Tj 
He  went  to  Seattle  to  buy  goods  for  his  stock,  and  his  vn.fe  went  with    ' 
him.  In  a  certain  store  where  ho  was  asked  v5io  constituted  the  firm. 
His  answer  v/asr  "I.Tj'  v/ife  is  the  only  partner  I  have_."  She  sat  within 
a  few  feet  of  where  this  \/aE  said,  and  the  witness  who  testified  to  the 
statement  of  ITr.  Haj'^dcn  thought  she  might  have  heard  what  ho  said. 
Again,  a  traveling  agent  for  a  firm  in  Can  Francisco,  who  sought  to  sell 
Hayden  goods,  when  in  the  store  at  Fairhavon,  aslced  a  question  similar 
to  the  one  aslced  in  Seattle,  and  received  a  similar  answer;  and  on  this 
Occasion  llrs.  Hoyden  \;aE  sitting  at  a  desk  in  the  view  of  the  two  men, 
and  again  the  testimony  was  that  she  might  have  heard  what  her  husband 
said.  The  jury  found  as  a  special  verdict  that  these  were  the  only  two 
men  to  whom  any  such  statement  was  made,  although  others  v;ere  testified 
to.  Yet  Uipon  this  testimony,  and  some  othor  of  as  slight  moment,  and 
because,  as  it  is  said,  the  wife  remained  silent  and  did  not  deny  v.i«a.t 
her  husband  said  in  her  hearing,  she  v^ai;  held  to  be  a  general  partner  by 
"holding  out,"  and  a  judgrasnt  was  rendered  against  her  not  only  for  the 
claims  of  the  two  firms  to  whose  representatives  her  husband  had  said 
that  she  was  his  partner,  but  also  for  the  claims  of  eighteen  or  tv/enty 
other  firms,  none  of  whom,  with  the  e:.ception  of  one  or  two,  pretended  to 
have  heard  that  she  v/as  in  any  v/ise  interested  in  the  business,  or  that 
she  e::i5ted  as  the  wife  of  J.  I.  Eaydon. 

It  is  clear  that _tia_siisjtain. such  a  judgment  v;ould  be  to  render  the 
estatj  of  evcrjr  married  woraaji  wholly  unsr.fe,  and  all  but  destroy  the  most 
beneficial li^urpose  designed  to  be  subserved  by  the  statute  as  v;e  understand 
itV  ,  


Judgment  reversed,  and  cause  dismissed.       \-   o  -v--   \I^ 
Anders,  C.  J.  and  Hoyt,  J.,  concur. 


-^' 


t^ 


Scott,  J.    (concurring). — I  concur  in  holding  that_aJiu£band  ajad-wife 
cannot  enter  into  a  partnership  with  each  othor  to  carx-y  on  a  business.   !lr 
Eiis_  is  tho  lav;  in  most  of  the  states,   and  all  arguriiontc  advanced  in  — ^ 

favor  of  such  a  holding  elsev^iere,   in  so  far  as  their  laws  relating  to  \ 

th3  removal  of  the  diS3,bilitics  of  married  -"-OTien  arc  like  our  O'^vn,  derive 
much  greater  force  in  a  state  'here  conr.vanity  property  la'>/s  prevail  as 
hero.     Our  statutes  recognize  but  tv/o  kinds  of  property  \iiich  can  be  held  i\|  ^-^ 
or  o./ned  by  married  persons — separate  property  axid  community  property. 
Tlie   statutoE  point  out  ho\:  this  property  may  be  acquired  and  define  v.hat  < 

it  is,   according  to  the  manner  and  time  in  \/hich  it  is  acquired.     The 
Pro,>ertv  and  prini-n;i,qr-'  rights  Of  every  married   ./oraaa^at  t3ie_time  of  her 
raar£i£i^e^_0T_Mte5:iards  acquired  by  gift,  device  or  inheritance,  \;ith  the 


^ 


9. 

^rents,  issues  and  profits  thereof,  is  her  separc:te  proi-'^rty,  and  the    j 
some  is  true  v/ith  regard  to  like  property  ovaieC  Tjy  the  husband.      '         ^f' 
Section  1399,  Gen.  Stat,  (former  £ec  2409),  provides  tliat-.all  property    -^ 
not  accuired  as  prescribed  in  any  one  of  the  vv<?.ys  mentioned,  viiich  iiT 
acquired  after  marriage  by  either  husband  or  vri.fe,  or  both,  is  oommunity 
.property.  It  has  been  held  tliat  their  interests  in  this  conmunity 
1  property  are  indissoluble,  during  the  e::istence  of  the  community,  to  the 
;  extent  that  the  interests  of  either  therein  cannot  be  reached  separately 
by  any  third  party.  Eie  interest  of  each  in  the  property  is  ec^ual,  and 
it  would  not  be  contended  that  by  any  mutual  arrangement  between  them::olves 
they  could  provide  that  either  should  have  a  lesser  interest  than  the 
other  in  said  ;^yroperty  \athout  destroying  its  coiimiuiity  cliaracter. 

boo.   1401,  Sen.  Stat.,  provides  that  "nothing  contained  in  any  of 
tho  provisions  of  this  ch-.pter,  or  in  any  la''  of  this  state,  shall  prevent 
the  husband  pnd  -'ife  from  jointly  enterin-s  into  any  agreement  concerning 
the  status,  or  disposition  of  the  /hole  or  any  portion  of  the  community 
property  then  o.;ned  by  them,  or  after.varc-c  to  be  acquired,  to  talre  effect 
upon  the  der^th  of  either."  Thic  teens  to  me  to  clearly  preclude  the  idea 
of  their  entering  into  any  such  agreement,  affecting  their  pro^^erty 
interests,  to  talce  effect  prior  to  the  dissolution  of  tlie  community, 
except  as  axprecsly  provided  othenvise.  Sec.  I'i-^Vo,   Gen.  Stat.,  authorizes 
the  direct  conveyance,  by  one  to  the  other,  of  his  or  her  interest  in  all 
01'  axiy  portion  of  their  co-Munity  real  pvojerty,  v.hich  thereljy  becomec 
the  separate  property  of  tlie  grantee,  out  it  is  apparent  that  cuch  a  deed 
to  be  effectual  mu^i;  convey  the  enti.  2  iutereit  of  the  grantor  in  the 
property,  deaignatec.  in  the  deed,  from  the  one  tpouce  to  the  other,  ifo 
lessor  or  partial  interest  of  the  grantor  could  be  conveyed  in  any  event, 
because  thic  would  have  the  effect  of  de:.troying  itc  coraitnunity  character, 
and  leave  it  neither  .e^-£,rate  or  cornmunity,  -wliich  wou.ld  effect  a  rer.ult 
the  lav;  doe.  not  contemplate.  If  huoband  and  wife  can  become  partner;:  in 
.ju,sin6i;w  t..ay  c,^  foi.a  the  same  kind  of  a  partuerchip  that  other  per':o-:' 
can,  and  enter  into  an  agreement  v.hereby  one  could  taJce  a  email  inteiei^t 
in  the  business  and  tlie  profits  thereof,  and  the  other  the  larger  one. 
The  property  acquired  through  the  pursuance  of  thic  bucinecc  v/ould  not 
come  under  either  head  of  the  tv^-o  dances  recosnised;  it  could  not  be 
held  to  be  separate  property,  for  it  would  not  be  acquired  in  any  one  of 
the  v;ays  specified,  and  it  could  not  be  community  property  becauce,  as 
said,  in  coraaunity  propertj?-  their  interests  must  be  equal,  '.hile,  acco^'ding 
to  the  ^-partnership  contract,  their  interest::  .Jight  be  very  unequal.  _  ^^i- 
vTOUld  create  a  tliird  specie^  of  property  ov.-ned  by  husband  and  wife  \aiich 
the  law  does  not  recognize.  It  seeirc  to  me  to  be  clearly  the  intention 
of  the  law  tliat  only  the  two  spocien  of  property  can  belong  to  the  community 
or  to  either  of  it.  vaenbers;  that  the  la,\v  i:   a  limitation  in  thi.  respect 
and  '..111  not  permit  the  holding  or  ovrner.  hip  of  any  other  kind  of  i^^oj®^^ 
thac  that  which  ic  derignated  a.  separate  zxiC   that  w.uch  1.  ae-is^atca  a. 
cofflaunity,  and  the  distinguishing  feature;;  of  it:  acqui.  ition  have  been 
cl©ai-ly  poix^ted  out  and  define  itc  character;  especially  for  the.e  reaaous 
I  thinli  tliat  in  thi;;  ;  tdte,  •  here  comn-onitv  proper tv  la.-  obtain,  that  ^ 
it  -.vould  be  contrar-  to  the  v.holo  la.;  0:1  tlu'  rv.bject  to  ..er.Tut  the_   ^_^:^ 
hu:-b'^id^nrwire"to  enter  into  any  contract  or  agreement  vAiereoy  they   -^\. 
might  ace  aire  property  of  a  cl^racter  other  or  different  from  that        J 
specified,  which  the  lav:  eripresiMy  permiti.  them  to  hola  and  enjoy.  1^ 
ir  true  we  have  rome  rtatiites-^it^h,  con;  trued  -.Tithout  reference  to  otner.. 


10. 

v/ould  seem  to  allov;  the  wife  to  enter  into  any  contract,  and  which,  re- 
move all  restrictions  in  this  respect;  I  think  our  statute  law  upon  this 
subject  goes  to  a  greater  eiitent  than  that  of  the  states  from  v^iich  the 
cases  have  been  cited. 

Sec.  1408  of  the  Gen.  Stat.  (Sec.  2596  of  the  1881  Code)  provides 
that  ©very  married  person  shall  hereafter  Iiave  the  same  right  and  liberty 
to  acquire,  hold,  enjoy  and  dispose  of  every  spocioc  of  property,  anc.  to 
sue  and  be  sued  as  if  ho  or  she  were  uninaxried,  and  Lee.   1410  (Sec.  2406 
of  the  1861  Code)  provides  that  contracts  may  be  made  by  a  wife  and 
liabilities  incurred,  and  the  same  may  be  enforced  by  or  against  her  to 
the  same  extent  and  in  the  same  manner  as  if  she  were  unmarried;  yet 
when  considered  in  connection  with  our  other  laws  relating  to  the  property 
rights  of  married  peixons  it  is  apiaront  that  they  are  considerably 
restricted  thereby  and  it  vvonld  be  vfholl-'  incompatible  and  inconsi stent 
with  such  other  provisions  to  hold  that  a  husbajad  and  dfe  could  enter 
into  any  joint  arran-emeut  or  agi-ee-^ent  bet-.'een  themselvob  cxeatins  a  a 
different  kind  of  ownership  in  property  from  the  ones  specif lec.,  to  taiie 
effect  before  the  death  of  either,  and  it  ■  ould  be  strongly  againct^ 
public  policy  to  allov/  thera  so  to  do,  and  thus  likely  give  rise  to  in- 
terminable and  unfathomable  complications . 

Our  la'.re  ca^ot,  in  accordance  ■  dth  rQC0gni2,ed  rulec  of  construction, 
"be  held  to  authoriz.e  the  husband  and  -.Tife  to  enter  into  a  partn??.-^iP  __"  "^^^t 
with  each  other  for  the  purpose  of  trade  or  business^  although  it  may  be   ^ 
(Possible  they  might  form  some  particular  I'JLnd  of  an  agreement  for  such  a    ^ 
purpose  which  miglit  not  conflict  ^vith  their  rights  of  property  as  defined   I 
\)Y   the  Et?,tutes.  This  is  very  doubtful,  ho-;fever,  and  hen  considereu  m  r\<s.V< 
allits  bearings  v/ith  therights,  duties  and  liabilities  of  :^.artnerE  to     ^^ 
'each  other  and  to  creditors,  it  is  evident  that  it  is  not  the  intent  oi' 
the  law  to  confer  any  such  authoiity  upon  them.  The  effect  that  such  an 
arrangement  roigxit  have  or  mu&t  necessarily  have  upon  their  proper ty 
rights  as  classified  is  the  strongest  axgui^ient  that  can  be  advanced 
against  the  position  of  the  respondents,  as  it  \:ould  destroy  the  distinct- 
ion between  the  classes  of  pro^^erty  they  nay  o^  ii  as  declared  by  the 
statutes. 

Sec.  1444,  Jen.  Stat.,  provides  that  a  husband  or  -.Ife  may  appoint 
the  other  attornev  in  fact  v;ith  full  power  to  sell,  convey  and  encumber 
his  or  her  se^^arato  estate,  both  real  and  personal,  and  £ec.  1446  ma^es 
Bimiliar  provision  \/ith  regard  to  their  ca.-imunity  property,  and  \-xta 
Sec.  144S.  further  assisted  by  the  broad  scope  of  Sections  1408  and  K-10. 
practically  subjects  the  v.lfe  to  the  influence  of  the  husband  as  to  tne 
disooLition  and  control  of  hor  property,  separate  or  caturaunity,  it  seems 
to  me  as  fully  as  any  partnership  agTeement  between  the).i  could  possibly 
effect,  and  I  should  be  forced  to  the  conclusion  that  they  mignt  become 
partners  in  trade  with  each  other  \>ere  it  not  for  the  statutes  prescrib- 
ing and  defining  the  icinds  of  yro^erty  a  husband  and  wife  may-  o-^oi  ana 
scruire.  It  is  a  matter  o£_5i;:eiieiiC9_ that  their  ^roverty  rignts  anc    t-)^ 
relations  become  compricTtod  at  best  under  the  practical  \Tor:angv  oi  ui«    , 
la/  as  e::.-ressed  an^.  inteiprateu,  b^  ac  ..   aatter  of  -f  IJ'^^^^J^^^^J- ., 
•;dulVbe-verv  undesirable  to  still  fUL^ther  allo^.'  the^  to  becoiue  involve, 
in  mercantile  partnership  relations  mth  all  its  possjole  resulting 


11. 

consoquancec,  couflicts  aad  complications. 

Dunbar,  J.  (dissenting). — I  dissent.  It  seems  to  me  that  the 
decision  in  this  case  is  another  instance  (too  coinmon  in  the  history  of 
the  courts  of  the  United  States)  of  the  judicial  repeal  of  a  statute. 
It  is  not  only  a  fundamental  principle  of  our  govertmont  well  ujaaerstood 
and  universally  recognized  that  the  legislative  and  judicial  departments 
of  the  govGT-ninent  must  be  kept  di;:tinct  and  sepai'ate,  but  the  first 
warnirg  note  sounded  by  all  -vvriters  on  statutory  interx^retation  is  that 
when  the  la'oguage  of  a  statute  is  plain  and  unambiguous,  the  duty  of 
interj^retation  by  the  court  does  not  arise.  Sec,  23^6  provides  that 
"every  marriod  person  shall  hereafter  have  the  same  right  and  liberty  to 
acquire,  hold,  enjcy  and  dispose  of  every  species  of  property,  and  to 
sue  and  be  sued,  as  if  he  or  she  v/ere  umnai'ried,"  21iere  seems  to  be 
nothing  ambiguous  or  doubtful  in  the  language  or  provisions  of  this 
statute,'  and  applying  any  and  every  loiov.-n  rule  of  interpretation  to  it 
we  must  conclude  that  there  is  no  room  for  construction,  and  that  the 
only  duty  of  the  court  is  to  declare  it  the  law,  and  to  decree  its 
enforcement.  The  real  intention  of  the  lav.malcers  must  be  gathered  from 
what  they  say,  and  v.here  the  language  is  not  teclinical  it  must  be  given 
its  ordinary  and  popular  meaning.  The  statute  provides  that  "every 
married  person  can  enjoy  and  dispose  of  every  species  of  property  as  if 
he  or  she  v;ere  unmarried;"  is  there  anything  doubtful  or  ambiguous  about 
that  language?  Could  language  be  more  plain,  pointed  or  incisive?  Could 
the  idea  of  unrestricted  enjoyment  of  one's  property  bo  eirpressed  more 
tersely,  plainly  and  emphatically?  There  are  no  provisos,  and  no  ex- 
ceptions e:;cpressed.  V/hat  right,  then,  lias  the  court  to  step  in  and 
under  the  guise  of  construction,  inject  a  limitation  \mich  the  legislat- 
ure did  not  provide  for,  and  which  in  effect  renders  nugatory  the  lav/ 
passed  by  that  body?  It  is  an  easy  but  dangerous  thing  for  courts  to 
wander  off  in  hazy  theories  and  speculations  concerning  \;hat  the 
legislature  meant,  and  to  bass  their  conclusions  on  the  policy  or  im- 
policy of  the  law.  This  should  only  be  done  v;hen  the  patent  ambiguity 
of  the  law  compels  it.  And  here,  in  support  of  T,.hat  1  have  said,  I 
desire  to  quote  from  Eadlich  on  the  Interpretation  of  Statutes,  Sec.  4, 
wliich  is  the  embodiment  of  the  authorities  upon  this  subject: 

"YJhen,  indeed,  the  language  is  not  only  plain  but  adiaits  of  but  one 
meaning,  the  task  of  interpretation  can  hardly  be  said  to  arise  and  , 
•those  incidental  rules  which  are  mere  aids,  to  be  invoked  -.hen  the  meaning 
is  clouded,  are  not  to  be  regarded.'  It  is  not  allov;able,  says  Vattel, 
to  interpret  what  has  no  need  of  interpretation.  Absoluta  sententia 
e::positore  non  eget .  Such  language  best  declares,  -.ithout  more,  the 
intention  of  the  lawgiver  and  is  decisive  of  it.  '  Tiie  legislature  nust 
be  intended  to  mean  \iha.t   it  has  plainly  e::preEsed,  and  consequently  there 
is  no  room  for  construction.  It  is,  therefore,  only  in  the  construction 
of  statutes  whose  terms  give  rise  to  some  ambiguity,  or  u^ose  graomatical 
construction  is  doubtful,  that  courts  can  e:-tercise  the  po'./er  of  controll- 
ing the  language  in  order  to  give  effect  to  what  they  suppose  to  have 
been  the  real  intention  of  the  lavvmalcers .  Tihere  the  \;ords  of  a  statute 
are  plainly  ei^Jressive  of  an  intent,  not  rendered  dubious  by  the   context, 
the  interpretation  must  conform  to  and  carry  out  that  intent.  It  matters 
not  in  such  a  case  vhat  tlio  consoauences  imy  be.  'It  has,  therefore. 


12. 

"been  distinctly  statod  from  early  times  dovm  to  the  present  day,  that 
judges  are  not  to  mould  the  languacjc  of  rtatutes  in  order  to  meet  an 
alleged  convenience  or  an  alleged  equity;  are  not  to  be  influenced  "by  any 
notions  of  hardshii3,  or  of  v;hat  in  their  viev/  is  right  and  reasonatle  or 
is  px*ejudicial  to  society;  are  not  to  alter  clear  words,  though  the 
legislature  may  not  have  contemi^lated  the  consequencec  of  using  them;  are 
not  to  tamper  v/ith  words  for  the  riii-pose  of  giving  them  a  construction 
which  is  "supposed,  to  he  more  consonant  vith  justice"  than  their  oi^inar3'' 
meaning.'  V/liero,  hy  the  use  of  clear  and  unequivocal  language,  capable 
of  only  one  meaning,  anything  is  enacted  "by  tlie  legislature,  it  must  "be 
enforced,  even  though  it  ho  absurd  or  mischievous.  If  the  v/ords  go  beyond 
what  was  probably  the  intention,  effect  must  nevertheless  be  given  to 
them.  Hhey  cannot  bo  construed,  contrary  to  their  meaning,  as  embracing 
or  e:ccluding  cases  merely  because  no  good  reason  appears  why  they  should 
be  excluded  or  embraced.  However  unjust,  arbitrary  or  inconvenient  the 
intention  conveyed  may  be,  it  must  receive  its  full  effect.  Indeed,  it 
is  said  that  it  is  only  when  all  other  means  of  ascertaining  the 
legislative  intent  fail,  that  courts  may  loolc  to  the  effects  of  a  law  in 
order  to  influence  their  construction  of  it.  But,  v/hilst  it  may  be 
conceded  tliat,  v.here  its  provisions  are  ambiguous  and  the  legislative 
intent  is  doubtful,  the  effect  of  several  possible  constructions  may  be 
looked  at,  in  order  to  doter:nine  the  choice,  it  is  very  certain,  that 
when  once  the  intention  is  plain,  it  is  not  the  province  of  a  court  to 
scan  its  vdsdom  or  its  policy.  Its  duty  is  not  to  make  the  law  reasonable 
but  to  expound  it  as  it  stands  according  to  the  real  sense  of  the  words." 

Ana.   yet  the  majority,  by  an  argument  based  on  the  supposed  hardships 
v/hich  v;ould  be  imposed  ni^on  msirried  women,  have  come  to  the  conclusion 
that  the  legislature  did  not  meaii  what  it  plainly  said.  And  if  the 
language  of  Sec.  2396  could  possiblj'  be  tortured  into  anything  doubtful. 
Sec.  2406  plainly  shows  tliat  the  legislative  intent  \;as  to  remove  all 
civil  disabilities  so  far  as  property  rights  are  concerned,  when  it 
provides  that  "contracts  may  be  made  by  a  wife  and  liabilities  incurred, 
and  the  same  may  be  enforced  by  or  against  her  to  the  same  extent  and  in 
the  same  manner  as  if  she  were  luanarried."  Tlie  legislature  evidently 
understood  the  full  scope  of  tlie  law  it  v/as  enacting  and  its  far-reaching 
effects,  and  v.here  in  its  opinion  the  limitation  was  necessary  it  provided 
for  it,  as  in  the  proviso  to  Sec.  2396  that  "nothing  in  this  chapter  shall 
be  construed  to  confer  upon  the  vdfe  any  right  to  vote  or  hold  office, 
except  as  other-'ise  provided  "by  law."  Hac'.  it  intended  the  law  to  operate 
as  claimed  by  the  majority  it  v/ould  evidently  have  incorporated  a  proviso 
in  Sec.  2405  substantially  as  follovi/s:   ''Provided,  Wo  married  woman  shall 
enter  into  a  contract  of  partnership  -^Ity.  her  husband."  But  it  is  left 
for  the  court  to  enact  this  provico  by  judicial  construction,  something 
very  near  approaching,  in  my  opinion,  a  judicial  enactment . 

As  5ho-7iug  the  danger  of  leaving  the  plain  provisions  of  the  statut- 
ory la-w',  I  note  the  fact  fnat  the  majority  recite  at  length  the  provisions 
of  the  coiunoii  law,  and  draw  deductions  from  its  analogies,  '.hen  the  act 
in  question,  to  avoid  the  very  thing  vhich  the  court  uo' •  insists  on  doing, 
provides  especially  in  Sec.  2417  that  the  "rule  of  coramon  lav.'  that 
statutes  in  derogation  tiiereof  are  to  be  strictly  construed  has  no 
ai^plication  to  t:iis  chapter.  This  clia:^jter  establishes  the  la^'  of  this 


13. 

territory  respecti:ic  the  subject   to  •..'hich  it  relates,  aiid  its  provisions 
and  all  proceedings  under  it  s^iall  "bo  liberally  coustrued  \."itli  a  view 
to  effect  its  object.  '     Tho  legislature  evidently  attonrpted  to  emancipate 
this  law  from  the.  rule  of  construction  now  insisted  upon  by  the  court; 
and  the  plain  rule  of  construction  provided  by  the  legislature  is  waved 
aside  by  the  rojTiark  that   "it  is  not  to  be  supposed  that  the  legislature 
intended  or  proposed  to  e:Lteud  the  scope  of  the  act  beyond  the  lan£'uai;e 
used  further  than  the  implications  naturally  flowing  therefrom."     I  think 
that  it  is  to  be  presumed  that   tl-^e  legislature  realized  the  fact   that  it 
was  enacting  a  statute  i:i  derogctioxi  of  tiie  coranoa  la\/,   and  tliat  it  did 
not  want  the  la'vv  hajnpered  by  the  rule   of  construction  raentioned.     It 
Eeei:Bto  rne  that  the  language  of  Loc.   2417  is  also  so  plain  that  there  is 
no  room  for  oonsti-uction.     In  fact  it  seems  that  if  the  plain  provisions 
of  this  law  can  be  ar^ed  out  of  e::idtonce,   all   the  lav/s  of  the  state 
are  at  the  mercy  of  judicial  cons  true  ti  on. . 

I  Bin  unable  to   see   in  what  \}z.j  tiie  enactments  of  Sec.  2397  and  Sec. 
2416  sustain  the  theory  of  the  majority.      It  is  perfectly  competent  for 
the  law  to  i-^rovide  who  sliall  bo  subject   to  the  burden  of  proof  in  a:ay 
given  transaction,  noi   is   it  by  any  means  a  nevf  provision  of  the  lav:. 
It  is  especially  a  wise  prevision  in  this   instance  and  can  in  no  wa 
that  I  can  ;ijerceive,    thro\;  auy  light  on  the  subject  discussed. 


'^•J  9 


So  far  as  Ceo.  2416  is  concerned,    there  is  the  ver;-  best  of  reasons 
why  transactions  concerning  couiiiuuity  property  should  be  attended  with 
solemnity  and  certainty-j  botli  parties  have  an  interest  in  such  property, 
and  delicate  relations  e::ist  which  do  not  e::ist  at  all  concerning  the 
separate  property  of  either  of   the   spouses.     The  separate  property  is 
more  independent,  and  the  fact  tiiat  the  lav;  irTL-oses  these  solemn  protect- 
ions ui-on  corainunity  property  and  not  upon  separate  property  v/ould  rather 
strengthen  the  idea   that  the  use  of   separate  property  v/as  entirely  un- 
restricted,    T!ie  fact  is  that  for  many  j'ears   tlve  law,   in  obedience  to 
popular  demand,  giov.ing  out  of  feudal  education,   stood  in  loco  parentis 
to  woman;   she  was  regarded  as  not  being  able  to   transact  business,   and 
had  to  act  under  a  trustee  or  guardian,     iidvancing   thought  has  demanded 
other  legislation,  and  v/oman's   independence  and  capability  have  been  re- 
cognized by  the  legislation  of  different  states  in  different  degrees. 
In  this   state  I   thinlc  the  legislature  has  seen  fit  to  grant   to  a  married 
woman  an  untranraeled  control  of  her  separate  property.     Tlie  lav;  presumes 
that  she  is   capa.ble  of  protecting  her  ov.'n  property,  and  it   is  not  in  my 
opiiiion  the  duty  of   the  court  nov;  to'  ascjime  to  stand  in  loco  parentis  or 
to  sally  forth  in  Qui::otic   zeal   to  relieve  v/omen  iron  conj^^gal  oppressors, 
or  from  burdens  real  or  imaginaiy.      It  is  argued  by   the  majority/   tl:ia.t  the 
case  at  bar  is  aii  instcnce  of  t;.-.e  evil  effect  of   the  construction  con- 
tended for  by  respondents,  because  the  wife  v/as  held  to  be  a  partner  by 
"holding  out,"  -./hen   t£:e   testimony  did  not   justify  suc3i  a  conclusion. 
This  aigwaent,    in  my  opinion,   is   entirely  without  force,    aid  ■-111  apply 
equally   to  nearly  eveij  lav/  on  the  statute  bool'is.     Juries  are  continually 
rendering  verdicts  and  courts  eiitering  judgrasnts,  based  oa  inad-equate 
testimony;    it   is   simply  a  question  of  fact  to  be   tried  as  aiiy  other 
cuestion  of  fact  is  to  bs  tried. 


14. 


■  ELLIOTT  V.  HAVasy.  ^  "^  V  ' 
(Ho,  4966.  Decided  April  6,  1904.) 
»4  Uash.  585. 

Appeal  from  a  jud^iment  of  the  superior  court  for  King  county,' 
Albertson,  J.,  entered  August  11,  1903,  upon  findings  in  favor  of  the 
defendants,  after  a  trial  before  the  court  without  a  jury,  dismissing 
an,  action  to  sub,iect  real  estate  to  execution  sale.  Affirmed. 

Hailey,  J. — Tlie  purpose  of  this  action  is  to  subject  certain  real 
©state  in  the  city  of  Seattle  to  execution  sale.  The  suit  v/as  brought 
"by  the  appellant,  as  administrator  of -the  estate  of  E.  B.  Earle,  and 
against  the  respondents,  who  are  husband  and  wife.  Cn  the  3d  day  of 
Juae,  1698,  respondent  Prank  B.  Hawley  executed  his  promissory  note_ 
^r  the  sum  of  ^l,000,  payable  to  the""ofaer  of  "one  Ehedd,  V/ho  afterwards 
transferred  it  to  the  said  E.  B.  Sarle,  the  latter  being  now  deceased. 
Said  Hawley  claims  that  the  note  was  given  merely  as  an  accommodation  to 
said  Shedd  to  enable  him  to  raise  some  money,  but  tha.t  question  is 
immaterial  here,  since  a  judgment  founded  upon  the  note  was  rendered 
in  favor  of  tho  administrator  of  Lhedd's  deceased  assignee,  and  against 
said  respondent  in  the  superior  court  of  King  county,  on  the  6th  day  of 
January,  1902.  There  v/as  no  appeal  from  said  jud^gment,  and  it  is  sought 
here  to  have  it  declai-ed  that  the  judgment  is  a  lien  upon  the  said  real 
estate,  and  that  the  land  is  subject  to  levy  and  sale  for  the  satis- 
faction of  the  judgment ._ 

J.tthe  time  said  note  v;as  made  the  said  Prank  R.  Hawley  was  ua-     ^^ 
married,.  Afterv-'ards,  on  the  9th  day  of  July,  1898,  he  and  his  co-     '  -'  ^ 
respondent  became  husband  and  wife.  The  obligation  represented  by  the 
note  Was  therefore  the  separate  debt  of  Prank  R.  Hawley.  "The  real     ^'"^'s^- 
estate  in  controversy  v;as  conveyed  to  the  respondent  Katherine  \7.  Hawley 
on  or  about  October  24,  1899,  and  the  complaint  alleges  that  it  v/as 
purchased  with  the  separate  funds  of  the  husband.  It  is  averred  that 
the  conveyance  was  made  to  the  wife  vdthout  consideration  paid  or 
agreed  to  be  paid  by  her,  and  in  furtherance  of  a  fraudulent  scheme  and, 
design,  on  the  'part  of  both  husband  and  wife,  to  cheat,  delay,  and 
defraud  the  creditors  of  the  husband.  The  answer  denies  said 
allegations,  and  affirmi^tively  alleges  that  the  property  was -purchased   ^ 
with  tlie  separate  funds  of  Ka,therine  V'.  Hawley,  and  that  the  same  is    "  ^^  f ■ 
her  sole  and  separate  property.  ^ 

A  trial  was  had  before  the  court  without  a  jury.  Tiie  findings  of 
the  court  cover  many  details,  cOid,  -.vhile  we  deem  it  unnecessary  to  set 
them  all  out,  yet  a  some\;hs,t  extended  statement  of  the  facts  found  will 
lead  to  a  better  understanding  of  the  case.  The  co^nrt  found,  that 
respondent  Franlc  R.  Hawley  had  not  been  a  resident  of  the  state  of 
Vashington  i.t   any  time  during  the  ten  yesrs  last  past,  and  that  respond- 
ent Katherine  './.  Hawley  has  never  been  s  resident  of  the  state;  that 
the  respondents  were  married  in  the  state  of  California,  and  therefore. 


15. 

in  the  aiiUmm  of  lG9fi,  living  togethar  as  liuslDand  aad  v;ife,  they  took  up 
th-Bir  a'bodo  at  or  near  cl.?ira  No.  d  dJocre  Dl"oovGry,  on.  Little  LMncolt 
(ixnalZf   Alar.'tca;  tlvac  saJd.  rtla?.m  77o,  S  was  ov.red  by  a  corporation  xn  which 
said  rranlc  R.  Hsr.vlny  v/a-s  a.   slo'.::i::i.".d.3r;  that  atc-ut  said  time  said  Hav/ley 
and-hi"3  upde,  one  RvacjC^br,  p:*.2j;nf.d  tb   irlio  a  la.y,  or  contract  for 
v/orkirg  on  sharer.,  on  a  pcrrt.io:i  cC  ra'Ld  oliim;  t?;3t  -choreafter  sa:d 
Eav,-j.py  was  mude  maiiager  of  sr.id  corporation,  a'^d  of  its  cporations  on 
seid  claim,  and  said  lay  vas  then  taken  "by  said  Reasoner  and  Katherine 
V/.  Hc.v/ley  in  equal  chares. 

It  was  found,  that  the  %/ork  upon  the  lay  was  performed  by  said 
Reasoner  and  gnothor,  tha  latter  "being  paid  for  his  ser^/ices  frora 
Mrs.  Hav'ley'u  sh.-re  of  the  clean-up;  tht^t  Itrs.  Hawley  did  not  perform 
actual  Dan"al  labor  upon  the  claim;  but  that  she  was  frequently  on  said 
lay  ground  while  the  work  was  progressing,  inijpected  ths  s^ime,  and 
consulted  with  her  partner  Keascner  concornicg  the  work;  tliat,  as  a 
result  or  the  work  upon  the  lay  and  the  cloaiv-up  therefrom,  lirs.  Hawley's 
net  share  of  the  proceeds  was  about  0^50.  -.vhich  sum,  by  her  authority  and 
direction,  was,  by  her  husband,  invested  for  her  in  the  spring  of  1809; 
that  said  investment  was  in.  a  partnership  known  as  Mitchell  &  Co., 
composad  of  tlie  two  respondents  and  one  Irchj  e  Mitchell;  that  the  husband 
in^rected  in  the  partnership  an  e^uai  amount  of  his  o-^.n   funds,  and  that 
said  Liitohell  o-vne-i  a  half  interest  in  the  partnership,  leaving  a  one- 
fourth  interest  each  to  ilr.  and  ilrs.  Hawley;  that  the  partnership 
operations  were  on  /jiril  Creek,  near  l^cim^   Alar;ka,  and  the  gold  represent- 
ing the  partne.rship's  share  of  1h.e  clean-up  was  brou'icht  to  th^  United 
States  assay  office  at  Seattle,  T/ashington,  in  one  entire  lot,  converted 
into  money,  and  deposited  in  a  bcnk  at  E-^attle  to  the  credit  ai»d  in  the 
name  of  Litchell  &  Co.;  that  the  purchase  price  of  said  real  estate  was 
paid  by  a  check  on  said  deposit,  dra'..'n  by  reLpondent  F.  L.  Itav.'ley,  in  the 
fii-m  name  of  Mitchell  &  Co.,  in  favor  of  E.  LI.  Carr,  who  was  acting  as 
attorney  and  agent  for  Llr^.  Hawley  in  the  purchase  of  tiie  lots;  that  it 
was  imderstood,  and  in  good  faith  believed,  both  by  Hswiey  and  his  '.vife, 
that  the  money  so  invested  Y/ac  the  separate  money  of  Mrc e  Hawley.  The 
findings  also  set  out  in  full  a  number  of  sections  from  Hill's 
Annotated  La">7s  of  Oregon,  as  being,  by  virtue  of  the  United  States 
statutes,  in  full  force  and  effect  throughout  the  territory  of  Alaska 
until  June  6,  1900.  A.-nong  other  provisions  of  said  statutes  are  the   ■» 
following: 

"Sec.  C992.  The  property  and  pecuniary  ri^shtf'  of  every  married 
r?omcn  at  the  time  of  her  marriage,  or  afterwcrds  acquired  by  gift, 
devise  or  inlieritpjice,  shall  not  be  subject  to  the  debts  or  contracts 
of  her  husbr.nd,  and  she  iTt.y  manage,  sell,  convey,  or  devise  the  same  by 
vn.ll  to  the  same  extent  and  in  the  saine  manner  tliat  her  husband  can 
property  belonging  to  him." 

"Sec.  2995.  The  p:.'Operty,  either  real  or  personal,  acquired  by 
any  married  woman  during  coverture,  by  her  ov.n  la.bor,  shall  not  be 
liable  for  the  debts,  contracts  or  Ij^sbilities  of  her  husband,  but^ 
shall,  in  all  respects,  be  subject  to  the  same  e::cepticns  and  liabilit- 
ies as  property  ov.ned  at  the  time  cf  her  marriage  or  aftenvards 
acquired  by  gift,  devise  or  inlaeritance." 


16. 

"Sec.  2873.  neither  huslD^nd  or  wife  is  liable  for  the  debts  or 
lialjlilities  of  the  other  incurred  liefore  niarria^'e,  and  except  as  herein 
otherwise  declared  they  are  not  lialile  for  tlie  separate  debts  of  each 
other,  nor  is  the  rent  or  income  of  such  property  liable  for  the  separate 
debts  of  the  other." 

"Sec.  2997.  Contracts  may  be  made  by  the  v/ife  and  liabilities 
incurred,  and  t?ie  sa;ae  enforced  by  or  against  her  to  the  same  e::tent  and 
in  the  same  manner  as  if  she  were  unmarried." 

It  was  further  found  that,  at  the  time  said  conveyance  was  made  to 
Ifrs.  Ka'.vley,  her  husband  -.'/as  wholly  solvent,  and  that  he  then  and  after- 
vrards  had  on  deposit,  in  the  V/ashington  National  Bank  of  Seattle,  moneys 
belonging  to  him  largely  in  e;:cess  of  his  total  indebtedness.  From 
the  facts  found,  the  coiurt  concluded  tloat  the  lands  purchased  became  the 
sole  and  separate  property  of  Lirs .  Hawley,  and  that  her  husband  has 
never  at  any  time  hau,  ^.-jad  has  not  now,  any  interest  therein.  Judgment 
was  entered  denying  the  demand  of  the  complaint  and  dismissing  the 
action.  Tlie  plaintiff  has  appealed. 

Errors  are  acsi^^ned  upon  the  court's  findings,  but  v;e  are  satisfied, 
after  reading  the  evidence,  that  the  factt  as  found  by  the  court  are 
EUbtained  by  the  evidence  submitted.  If  there  -.vas  no  error  in  the 
conclusion  that  the  purchase  money  for  the  lots  involved — acquired  in  the 
manner  it  was — beca:ae  the  sopai'ate  money  of  Itrs.  Ha'vley,  then  the  judg- 
ment v;a£  right.  It  -ill  be  observed  by  reference  to  Sections  2092  and 
2993  of  the  Oregon  statutes  quoted  above,  and  which  vere  in  force  in 
Alaska  when  Krs  Ha'vley  v.'as  engaged  in  her  enterprises  there,  that  neither 
real  nor  personal  property,  acquired  by  a  married  \vromaii  during  coverture 
by  her  own  labor,  chall  be  liable  for  the  debts  of  her  husband,  but 
shall  be  absolutely  her  own,  and  subject  to  her  disposal.  Under  the  ^ 
evidence  and  the  findings,  Kirs.  Hawley  agreed  with  Reasoner  to  v;ork  the 
lay  above  mentioned  in  shares.  This  she  had  a  legal  right  to  do,  under 
the  terms  of  Sec.  2997,  supra. 

Appellant,  ho\/ever,  insists  that  the  proceeds  of  tiie  lay  work  could 
not  have  become  her  separate  property  unless  she  had  actually  performed 
manual  labor  upon  the  clain.  Ue  do  not  think  the  •  'ords  "by  lier  ov.n 
labor;'  used  in  Sec  299;:,  supra,  were  intended  to  be  so  restricted,  but, 
as  suggested  by  respondents'  coinisel,  thst  they  rather  mean,  by  her  ovm 
efforts.  She  deliberately  agreed  with  Reasoner  to  work  a  lay,  and  to 
pay  for  tlie  services  of  a  man  as  a  helper  in  her  place.  She  v;as  often 
upon  the  ground  to  see  how  the  ^-ork  progressed,  and  advised  -ath  Reasoner 
about  it.  The  helper  v.'as  paid  from  her  share  of  the  proceeds.  V/e  think, 
under  such  circumstances,  that  the  money  was  acquired,  by  her  OMi  e::ert- 
ions,  and  that,  under  the  lav;,  it  beca-ne  her  separate  money.  Tne  court 
in  its  findings  traced  that  noney  to  a  subsequent  investment,  and  found 
that  it  yielded  yet  more.  The  iindings  do  not  disclose  the  anount,  but 
the  evidence  shows  that  her  share  of   the  proceeds  of  such  investment  in 
the  ITome  partnorchiveater-.Jrise  v;as  more  than  C'i.OOC,  and  that  said  srm 
was  placed  in  tLie   berttle  bank,  and  from  it  came  tlie  money  \vhich  purchased 
the  lots  in  question.  Thus  the  money  war  acquired  by  llrs.  Hartley  in 
Alaska  under  la's  -.-hich  made  it  her  separate  property,  and  when  it  was 
brought  to  Seattle  it  still  remained  such. 


17. 


Appellant,  however,  insists  tllat  undor  Board  of  Trade  v.  Haydeti, 
4  Wash.  263,  30  Pac.  87;  32  Pac.  224,  31  Am.  Ct.  919,  16  L.  R.  A.  530, 
the  wife  could  not  enter  into  a  conti-act  o:^  partnership  with  her  toi- 
band.   Tt  will  be  remembered  that  the  husband  and  wife  and  one  Mitchell 
composed  the  Home  partnership  of  Mitchell  &  Co.  The  ivile   diccu&ced 
and  decided  in  the  case  cited  is  for  the  protection  of  the  wife's  sep- 
arate property,  to  prevent  her  from  entering  into  such  engagements  v;ith 
her  hucband  that  her  separate  property  may  be  taken  from  liev  in   satis- 
faction of  his  debts.   The  purpose  of  uhe  rile  is,  not  to  worlc  a  loss 
to  the  wife,  but  to  prevent  it.  In   this  inrtanoe  money  which  went  into 
the  Home  enterprise  vas  sho\.'n  to  be  her  separo-te  roney.  It  yielded  a" 
lar^e  pei'centa^e  of  increase.   2Iie  wife  was  entitled  to  the  le.c^itimate 
increase  upon  the  investment  of  her  sep  rate  money.   It  is  further 
urged  that  these  funds  hcve  been  comiaingled  with  those  of  the  hasband, 
and  that,  under  Yesler  v.  Hochstettler,  4  vfesli.  C49,  30  Pac.  398,  they 
are  not  separate  funds  of  the  wife.   There  has  never  been  a  comming- 
ling v/hich  leads  to  any  confusion.  The   amount  invested  by  each  was  a 
definite  sum;  each  sum  yielded  its  definite  increase,  and  the  v^hole  of 
each  lias  at  all  times  been  easily  ascertainable.  ISais  -/as  not  con- 
fusion, and  the  separate  interests  did  not  loce  their  identity  as  such. 

The   judgment  is  affirmed,  V~"o-.~  .^  ^i~^  _^^ 

FDILERTON,  C.   J-,  and  MDOTT,  AHDERE,  and  DUHBAR,  JJ.,  concur. 


(/wi~i/^^ 


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I 


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O- 


CHAJ^TER  I 


CITATIOns. 


How  should  the  statutes  be  construed? 
City  Ins.  Co.  v.  Simmers 
Go::  V.  Killer. 
Green  v.  Ferguson. 
AUace  v.  Finherg 
Miller  v.  llarx 
Ryan  v.  Ferguson 
Ee  Hill's  Estate 
Wiarhurtori  v.  'I'Zhite 
Less  V.  legs. 
Magee  v.  Big  Land  Co# 
Marie  v.  Vi/hit taker 
Schlasl)  V.  Castaing 
Wiley  V.  Verliaest 

State  ex  rel.  Guy  v.  Su.per  Ct,  King  Cotuity 
Crovre  V,  Atiason  Construction  Co. 
iNortheni  SarJr  Va  Graves. 


19   (La.)  Annual  249, 
54  Tex.  16 
62  Tex.  525. 
46  Tex.  35. 
65  ffiex.   131. 

5  V;ash.356. 

6  T/ash.285. 
16  V/ash.511. 
34  Wash. 132. 

51  Wash. 511. 
10  Wash- 556. 
50  Wash. 331. 

52  Wash. 

54  Wash.264. 
67  Y/ash.420. 
79  Wash.411. 


)\-^ 


1^      ^y^  .^:2'!^>«:fe^      ^^C^'^l^^ 


a^'T-^ 


^I^-l-A*-^^!*^ 


'     /'-'<^^<^2V' -"V 


<r 


/ 


18. 


niCHAED  HOLYOKE  v.  I*.  B.  JAOKEQII.    >«  I  ^ 
(Decided  July  22,   1882.)  ^ 

(3  T.T,   255,   1882), 

Error  to  the  District  Court  holding  terras  at  Seattle.  Ohird 
District. 

In  thi.s  cs.se,  D.   B^  Jaclrson  ■brotx^ht  his  sction  :igs.inst  R.  Eolyoke, 
_alle3"iuj  in  h.i's^cSiilJia'iiit  that  on  April  7,  1880,  dofendcJit  was  tLe 
-Q\niQi-_  of  certain  .rec-1  estate  j  tliat  on  said  day  the  parties  made  an 
agreement  in  Vifritiug,  wherehy  plaintiff  "bought  and  defendant  sold  the 
property,  paying  tv.'o  htmdred  dollars  as  part  pa^inent,  and  defendant 
jwas  to  maice  and  deliver  a  good  deed  for  the  property  upon  the  paj^nent 
of  two  thousand  eight  hundred  dollars,  being  "balaince  ofpurchaa© 
price.  The  alleged  contract  was  in  v/riting  as  follov;s:- 

"Port  Gamtle,  April  7,  1880. 

"Received  of  D.  B.  JacKson  #200,  to  apply  on  trade,  made  this 
day  for  lot  1,  in  ■bloclc  12,  on  Front  Street,  Seattle,  for  $3,000,  to 
be  paid  on  delivery  of  deed,  ten  days  from  date. 

Richard  Holyoke." 

The  complaint  further  alleged  tender  "by  plaintiff  of  balance  of 
PurcKssG-prico,  refusal  by  defendant  to  execute  conveyance ^  and  an 
offer  by  plaintiff  to  perform  his  contract  upon  delivery  of  deed.  ' 
Plaintiff  also  alleged  damage  sustained  by  defendant's  breach  of  con- 
tract, the  enhancement  of  the  value  of  the  property  between  date  of 
contract  and  time  fi::ed  for  performance,  and  other  facts  shovdng  spec-  ' 
ial  dajmges.   Plaintiff  prayed  for  a  specific  performance  of  the  con- 
tract, or  for  damages  sustained  by  the  breach.   Eie  defendant,  appear- 
ing, moved  that  plaintiff  be  required  to  elect  whether  to  pursue  his 
equitable  remedy  for  specific  performance  or  prosecute  his  action  at 
law  to  recover  damages,  liotion  granted,  and  plaintiff  elected  to  pro- 
ceed at  law.  In  his  answer,  the  defendant  denied  the  agreement  in 
v;riting,  and  denied  the  sale,  except  on  condition  that  his  wife  should 
consent  to  the  sale;  and  also  denied  tender,  and  all  allegations  of 
damages.  As  an  affirmative  defense,  he  pleaded  his  marriage  relations 
before  and  ever  since  1873  with  his  wife,  now  living,  the  acquisition 
of  the  property  in  1873  as  community  property,  and  the  continued  owner- 
ship of  the  property  as  such  thereafter,  and  the  refusal  of  the  v;ife 
to  join  in  the  sale,  and  immediate  notice  thereafter  to  plaintiff  of 
such  refusal,  and  a  tender  back  of  the  money  paid,  \7ith  interest, 
which  was  deposited  in  court.  Ihere  \;as  also  an  allegation  that  plain- 
tiff Icnew  of  the  marriage  relation  at  the  time  of  the  contract,  and   ^. 
that  defendant's  -wife  hid  not  consented  to  the  sale,  and  that  the      — 
agreement  v^as  made  upon  the  condition  tliat  she  would  consent.  Plaintiff 
in  his  reply  denied  the  matter  set  forth  in  the  affirmative  defense. 
There  was  a  judgment  for  the  plaintiff,  from  \ifhich  defendant  appealed. 


19. 

Mr.  Chief  Juctice  O-reene  delivered  the  opinion  of  the  court. 

The  primary  question  iuvolved  in  tliit  case  is.vAidther,  cubsequeat  Q^^ 
to  the  husTDc.nd  and  -/if e"  act  of  1879,  the  plaintiff  in  error,  being  a     -^-^. 
husband,  could,  ■vithout  his  '.;ife  joining,  make  a  valid  contract  to  cell   ^ 
to  defendant  in  error  conmunity  property.  By  the  provisions  of  the 
husband  and  \dfe   acts  passed  in  1879,  and  previously,  the  husband  and 
\7if0  are  considered  as  constituting  together  a  compound  creature  of  the 
statute,  called  a  corimunity.  This  creature  is  sometines,  thoii£;h  inaccu- 
ffttelj'-,  denominated  a  species  of  partnership.  It  probably  approaches 
more  nearly  to  that  kind  of  partnership  called  universal  than  to  any 
other  business  relationship  kaovm  to  the  civil  or  coramon  la*/* 

A  convent i onajL_ o Oioauai ty ,  in  a  state  where  statutes  uould  permit,  k%1~ 
migiht  be  contrived  which  would  be  substantially  a  partnership;  but  an  ""^v-^^. 
ordinary  legal  coramunity  is,  in  many  important  particulars,  quite  distinct. 
It  is  like  a  pai'tnership,  in  tiaat  some  property  coraing  from  or  through 
one  or  otlier  or  both  of  tlie  individuals  forms  for  both  a  coramou  stocky 
which  bears  the  losses  and  receives  the  profits  of  its.  taunagement; ,  and. 
T^ich  is  liable  for  individual  debts;  but  it  is  unlike,  in  that  there  is ^ 
jao  regard  paid  to  proportionate  contribution,  service,  or  business^ 
fidelity;  that  each  individual,  once  in  it,  is  incapable  of  disposing  of 
his  or  her  interest;  and  tlaat  both  sxo  pov/erless  to  escape  from  the 
relationship,  to  v^y  its  terms,  or  to  distribute  its  assets  or  its 
profits.  In  fi::ity  of  constitution,  a  oonimunity  receables  a  corporation. 
It  is  si.ailar  to  a  corporation  in  this,  also,  tiiat  the  state  originates 
it,  and  that  its  powers  art^  liabilities  are  ordained  by  statute.  In  it, 
the  proprietary  interests  of  husband  and  wife  are  equal,  and  those 
interests  do  not  seem  to  bo  united  merely,  but  unified;  not  mixed  or 
blent,  but  inc'.entifiod.-  It  is  sui  generis, —a  creature  of  the  statute. 
By  virtue  of  t:".e  statute,  this  husband  and  vdfe  creature  acquires  property 
That  property  must  be  procurable,  aanaseable,  convertible,  and  trans- 
ferable in  some  way.  In  somebody  must  be  vested  a  pov/er  in  behalf  of  the 
comnimity  to  deal  with  and  dispose  of  it.  To  somebody  it  must  go  in  cas"© 
of  death  or  divorce.  Its  euenptions  and  liabl3.ities  as  to  indebtedness 
must  be  defined.  All  this  is  regulated  by  statute.  Ilanag-emeut  and 
disposition  may  be  vested  in  either  one  or  both  of  the  members.  If  in 
one,  then  that  one  is  not  thereby  made  the  holder  of  larger  proprietary 
rights  than  the  other,  but  is  clothed,  in  addition  to  his  or  her 
proprietary  rights,  wi^tl-  a  bai*e  pov;er  in  trust  for  the  cortmunity.  This 
power  the  statute  of  If  "  chose  to  lay  upon  the  husband,  v.hile  the  statute 
of  k879  thoiight  proper  to  take  it  fro,j  the  husband,  and  lay  it  upon 
husband  and  -:ifo  together.  As  husband's  "like  absolute  power  of  dis- 
position as  of  his  own  separate  estate,"  bestowed  by  tlie  ni-itl:  section  of 
the  act  of  1875,  \7S£   a  mere  trust  conferred  upon  him  as  member  and  head 
of  the  conanunity  in  trust  for  the  community',  and  not  a  proprietary  right, 
it  was  perfectly  competent  for  the  legislature  of  1879  to  take  it  from 
him  and  assign  it  to  himself  and  his  vafe  conjointly.  This  -/as  done. 
TAhen,  therfore  in  1880,  tlie  plaintiff  in  error,  without  his  wife,  entered 
into  an  agreement  to  sell  the  land  Ciuestion,  he  agreed  to  do  what  he 
himself,  by  himself,  could  not  do,  and  therfore  could  not  agree  to  do. 
To  make  an  actual  sale  or  conveyance  without  his  wife,  he  had  no  power. 
The  lav;  says  such  a  thing  shall  not  be  done.  An  agreement  proposi'ig  it 
is  i^  conflict  ■.  Ith  the  law,  and.  void.  As  the  defendant  in  error  Imew  of 


t:^ 


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20. 

the  marriage,  and  that  the  property  was  corcmunity  property,  he  was  a 
participant  in  an  invalid  transaction  wherein  the  lav?  cliarged  hira  with 
■knowledgo  of  the  invalidity.  He  was  doinj  v/hat  he  is  presumed  to  have 
laio\7n  was  aeainst  the  lav/.  So  circumstanced,  he  is  entitled  to  no  re- 
dress for  the  failure  of  plaintiff  in  error  to  carry  out  the  void  con- 
tract to  sell. 

Let  the  judgment  of  the  District  Court  Tse  reversed,  and  the  cause 
te  remanded  to  that  court,  with  directions  to  vacate  the  order  setting 
aside  the  judgment  of  nonsuit. 

Hoyt,  J,,  concurred,  /* 

On  a  motion  for  a  rehearing,  the  opinion  of  the  court  was  delivered 
"hj  llr.  Chief  Justice  3-reene,  as  follows:  — 

^Comnvunit?j-property  \;as  created  by  a  statute  of  December  2,  1869,   -  >. 
.^thoush  called  "common  property"  "by  tloat  statute  and  by  tLe  statute  of    •  ^ 
1873.  By  the  statute  of  1879  it  was  first  denominated  "community; 
property."  The  rights  referred  to  in  the  thirty-first  section  of  the 
act  of  1879  are  proprietary  rights,  and  not  such  nalcedpower  of  management, 
control,  or  disposition  as  are  devolved  upon  any  mai^ried  person  to  "be 
e::ercised  in  trust  for  the  coimunity.  Therefore,  all  the  provisions  of 
the  act  of  1879  rhich  operate  to  create,  vai-y,  or  assign  powers  of  that 
description  aa-e  applicable  to  property  previously  accuired.  By  section 
e  of  the  statute  of  1879,  the  husband  is  clothed  with  a  certain  trust  in 
respect  to  community  real  property.  The  management  and  control  of  it  is 
vested  in  him,  not  for  himself,  but  for  the  community.  Besides  this,  he 
with  the  wife  is  endo-./ed  with  the  power  to  dospose  of  it.  Tliis  po'./er, 
too,  is  in  trust  for  the  coirmunity,  for  we  must  distinguish  the  community 
called  into  e::isteuce  by  the  statutes  from  the  two  individuals  who 
composed  it.  By  a  like  distinction,  a  corporation  is  conceived  to  differ 
from  its  stocl-iiolders.  Vihen  the  husband,  therefore,  thus  situated,  under- 
takes to  dispose  of  the  community  property  as  his  own,  he  stands  differ- 
ently from  the  absolute  proprietor  of  a  homestead,  who  has  the  power  to 
shift  the  domicile  of  his  famly  at  pleasure,  and  who  is  required  to  have 
his  wife  join,  not  because  she  is  joint  trustee  Vvlth  him,  nor  hecause  he 
without  her  is  not  -omner,  but  merely  as  a  check  on  his  power  of  dis- 
position, lest  certain  consequences  follov/,  injurious  to  the  proper 
policy  of  the  state.  In  the  matter  of  disposing  of  consnunity  real 
property,  husbaiai  and  wife  are,  by  the  law  of  1879,  joint  trustees  for 
their  mutual  benefit  in  the  community.  JVithin  the  scope  of  their  trust, 
neither  can  act  v^jthout  the  other.  ITo  contract  of  disposition  undertalcen^ 
by  either  husband  or  ./ife,  in  contravention  of  his  or  her  fiduciary  re-   -  ^-^ 
lation  to  comraunity  real  property,  can  be  enforced  so  as  to  reach  any      i 
such  property  directly  or  indirectly.  And  if,  at  the  time  of  malzing  the 
supposed  contract,  the  would-be  purchaser  Imo-.-s  it  to  be  in  breach  of 
fiduciary  duty,  then  it  is  void  in  every  aspect,  and  canno_t  "be  the 
foundation  of  any  lia"bility  whatever. 

In  the  case  at  bar  the  supposed  contract  was  made  without  consulting 
the  wife,  vvlthout  her  laiO\.ledge,  against  her  v/ill,  notwithstanding  the 
defendant  well  Icnev/  that  under  the  statute  she  vjas  entitled  to  and  "bound 
to  e^iercise  an  equal  voice  and  responsibility  in  the  matter  with  her 
husband. 

Let  the  motion  for  a  reheai-ing  be  denied. 


21. 

Stans  V.  Baitey 
9  Wash..  115,  18S1 

Janes  S.  Stazis  et  al.,  ?Les;,.-ondentE,  v.  Jaaes  E.  Baitey 
et  al.,  Def endaxits ,  :Jllen  I.I.  Ilalfby  et  al..  Appellants. 

Appeal  from  Superior  Court,  Pierce  County. 

5Ihe  opinion  of  the  court  \/as  delivered  "by 

Scott,  J. — ^Ellen  LI.  lilaltby  served  notice  of  an  appeal  in  this 
action  and  gave  security  therefor,  7;hich  v/as  in  form  an  undertal:ing 
instead  of  a  bond.  Eiereafter  appellants  Cvveus  anc.  Looraic  undertook  to 
join  in  said  appeal  "by  filing  \7ith  the  cleric  of  the  superior  court  a 
statement  that  they  joined  therein,  in  pursuance  of  Sec.  5,  Lav/s,  1893, 
p.  121,  "but  e::ecuted  no  bond,  ate  respondents  move  to  dismiss — as  to 
Llalfby  on  the  ground  that  an  imdertalo-ng  for  costs  is  not  a  sufficient 
compliance  with  the  statute  relating  to  the  r;lv?.ng   of  a  "bond,  and  as  to 
Owens  and  Loomis  on  the  ground  that  they  failed  to  give  any  security 
",7hatever. 

j&.£pellant  lialfby  during  the  times  herein  mentioned  vras  a  resident 
of  the  £tate  of  Hew  Yorlc,  and  on  the  loth  cf  i:ay,  1690,  she  purchased 
of  CaveixLor  &  Po-jlor,  loan  "brolcers  of  ^acome,  a  mortgage  for  $1,500  on 
lots  seven  and  eight,,  in  hlock  5219,  in  the  city  of  Tacoma,  paying 
therefor  the  sum  of  ^1,500  ajcd  accrued  intercBt.  This  mortgage  was 
executed  to  Gavender  &  Fov/ler  on  the  24-th  day  of  Iferch,  1890,  "by  one 
"James  E.  Baitey,  in  whose  name  the  legal  title  to  the  premises  stood. 
Thereafter  this,  suit  v?as  "brought  by  the  plaintiffs,  claiming  to  be 
succeLbors  in  interest  of  one  Henrietta  Baitey,  whovvas  alleged  to  have 
been  the  real  owner  of  the  property,  it  being  clairaed  that  the  same  was 
held  in  trust  for  her  by  said  James  S.  Baitey,  and  that  appellant  had 
notice  thereof^  The  case  v.^s  tried  upon  this  theory,  and  after  the 
testimony  vra.s  in  the  court  indicated  to  the  plaintiffs  tliat  the  proofs 
failed  to  establish  a  trust,  and  the  only  issue  in  the  case  v/as  as  to 
whether  said  property  --^s   the  community  property  of  the  said  James  E. 
Baitey  and  Henrietta  Baitey,  and  suggested  to  the  plaintiffs  that  the 
complaint  be  amended  for  the  purpose  of  trying  that  issue,  '.".hereupon 
twenty  days  v/ere  allov/ed  the  plaintiffs  v/j.thin  which  to  amend  their 
complaint,  which  they  did  by  inserting  an  allegation  as  follows: 

"And  these  plaintiffs  further  allege,  that  on  or  about  the  year 
1881  the  said  Henriotta  Baitey,  deceased,  intermarried  vVith  the  defendant 
James  E.  Baitey,  in  the  State  of  California,  and  at  all  times  after  and 
until  death  of  said  Eem-ietta  Baitey,  on  the  2d  day  of  2Jarch,  1890,  the 
said  Henrietta  Baitey  ajid  the  said  James  E.  Baitey  lived  and  cohabited 
together  as  husband  and  vife,  and  the  property  described  in  this  com- 
plaint vas  acquired  after  the  marriage  of  fee  said  Henrietta  2.  Baitey 
ard  the  said  James  E.  Baitey  ari  while  they  «/ere  living  together  as 
husband  and  wife  in  the  State  of  Washington." 


22. 


It  is  contended  that  said  James  E.  Baitey  and  Keuxiotta  Baitey  "be- 
came husband  and  wife  by  virtue  of  a  ccmmon  law  marriage,  which  -was  good 
'in  the  State  of  California,  and  tliat  having  assumed  such  relationship 
_ther0,  and  continuad  it  thereafter  in  this  territory  anc*.  state  up  to  tho 
time  of  her  death,  they  were  husband  and  wife,  and,  if  so,  the  proof  is 
satisfactory  tliaJ;„tli,e-.j3rQpexty  acquired  v/as  the  coomtmity  property  of 
said  pai'ties. 

A  good  deal  of  proof  was  introduced  in  the  case  to  chow  tliat  said 
parties  had  a.l\jarjs   held  themr elves  out  as  husband  and  mfe  in  this  ter- 
ritory, and  w'Q   thin!:  this  fact  was  clearly  ostablished,  but  we  rogard 
it  largely  imriiatcrial,  as  laarriages  under  the  coniaon  law  do  not,  and 
did  not,  obtain  here,  and  it  vfas  only  relevant  as  some  evidence  of  a 
prior  marriage.  Tlicre  is  no  proof  of  any  agreement  having  been  entered 
into  bot\.'aen  said  parties  to  take  each  other  as  husband  end  wife  in  the 
Stat©  of  California,  and  absolutely  no  proof  that  thoy  ever  hold  each 
other  out  to  the  coinmunity  there  as  husband  and  -jTife.   Ihe  bare  fact 
that  they  cohabited  there  appears,  but  this  was  insufficient,  standing 
alone,  to  establish  a  common  law  marriage.  OSieir  subsoquont  conduct  in 
this  territory  and  state,  where  they  openly  assurned  the  relations  of 
husband  and  wife,  -was  of  no  avail,  and  we  are  constrained  to  find  from 
the  testimony  that  Henrietta  Baitey  -nas  never  the  wife  of  James  E. 
Baitey.  Consequently  the  judgment  of  the  court,  finding  that  the  real 
estate  in  question  v;as  the  comitunity  property  of  said  James  E.  Baitey 
and  Henrietta  Baitey  must  be  reversed . 


ZVUUBAR,  G.  J.,  and  HOYT  aM  AHDEBS ,  JJ.,  concur. 


SIIIiEB,  J.,  not  sitting. 


\-  c.  ^^ 


-Cs 


k 


.^•^jt-^-^— *-i-y 


2 


^^^■^ 


1 


23. 


m  HE  LIcLB.U(;HLlJSr'S  ESmTE.  , 

r 

4  Wash.  570,  18?2. 

In  the  Mattel'  of  the  Estate  of  Hir.-im  C.  MoIc.u.gM.5r., 
Deceased:  HOEilUT  P.  HSC3EI.T.nffi,  Appellant,  v.  BU'.CK 
A.  LIcLri-UGHLIE,  Respcadent. 

Appeal  from  Superior  Court,  King  Co-uuty. 

2he  opinion  of  the  court  was  delivered  by 

Scott,  J.— On  the  12th  day  of  December,  3691,  Hiram  C.  Mclaughlin 
died  intestate  at  la  GraEde,  in  the  State  of  Oregon.  He  v.'as  a  citisen 
cJ^tMs  state,  residing  at  Seattle,  and  left  perr>on£>,l  property  to  the 
amount  of  aVout  five  thousand  dollars  in  King  county.  He  had  a  daugh- 
ter over  twenty-one  years  old,  v/hose  mother  is  not  now  living,  and  this 
daughter  claims  to  be  the  only  heir.  .One  Ruth  A.  McLaughlin,  wxth -whom 
he  was  living  at  the  time  of  his  death,  claims  to  be  h5.s  wife  by  a  mar- 
riage under  the  common  law.  _  She  v.as  married  'ro   Kiram  C.  Hclaughlin  on 
the  13th  day  of  August,  1687,  by  a  judge  of  probate,  at  OSicoca,  in  this 
state.  At  that  time  she  had  another  hu?3band  living  by  the  name  of  Van 
Every.  There  was  some  testimony  to  show  that  at  the  time  she  was  mar- 
ried to  McLaughlin  she  believed  Van  Every  was  dead.  She  continued  to 
live  with  McLaughlin  as  his  wife  until  July,  1690,  at  v/hich  time  she 
received  information  that  her  first  husband  was  still  living,  v;hereupon 
she  and  IIcLau^lin  separated,  and  divorce  proceedings  were  instituted 
by  her  against  Van  2very,  wherein  she  obtained  a  divorce  from  him  in 
January,  1891.  "Whereupon  she  and  McLaughlin  resumed  theii-  former  rela^  ,^  »  ^-^ 
tions,  although  no  marriage  ceremony  vas  ever  performed  between  them     ■=5~ 
subsequent  to  the  time  she  obtained  a  divorce  from  Van  Every.  There 
is  testimony  to  shov/  that  she  and  McLaughlin  continued  to  live  together 
as  husband  and  wife  up  to  the  time  of  his  death;  that  they  held  them- 
selves out  to  tiiG  public  as  husband  and  wife,  and  believed  themselves 
to  be  suoh,  and  believed  no  marriage  ceremony  was  required  to  render 
the  marriage  valid,  inhere  v;as  some  testimony  to  contradict  this  state 
of  affairs,  and  to  show  they  did  not  regard  themselves  as  husband  and 
wife.  It  appeatrs  that  at  one  time  while  they  were  living  together, 
prior  to  her  obtaining  the  divorce  from  Van  Every,  she  left  McLaughlin 
and  vrais  gone  some  time,  and  he  had  no  iraov/Ledg-e  of  her  whereabouts  for 
some  weeks;  that  he  subsequently  founn?.  her  at  G3acoma,  and  instituted 
criminal  proceedings  against  her  for  come  purpose  which  the  evidence 
does  not  make  clear.  These  difficulties  seem  to  have  been  adjusted, 
however,  am  the  parties  resmned  tlieir  former  relationship  up  to  the 
time  the  proof  shows  that  she  discovered  that  Van  Every  w&,s  still  living. 
IJpon  the  death  of  Mclaughlin,  ITormon  P.  Hessoltine,  the  appell^t,  who 
was  holding  a  power  of  attom«jy  from  Bertha  McLaxighlin  authorizing  h:ja 
to  represent  her  in  the  settlement  of  the  estate,  petitioned  the  super- 
ior court  of  King  county  for  letters  of  administration.  Said  Ruth  A. 
McLaui^lin  also  petitioned  said  court,  as  the  widow  of  said  Eircm  C. 
McLaughlin,  for  the  appointment  of  one  Frank  A.  Pontius  as  administrator. 


24. 

Qa.  the  15tli  day  of  January,  1P92,   said  court  appointed  one  John  Fair- 
field special  ac',iojn:-.£tra-';or.     Oji  the  4f-h  c'.ay  of  Iv3'hruar7  follov;:.ng  ^ald 
court  found,  up^n  ;^  tj^pal   ri'  tli.T  T'\''Jh^'i'  'jf.  thp  pr.-^Li'^c,    vhat  caid  Ruth 
A.  lIcLau^^ilijuaasi^the  r/i.d'-w  ':!  d(;o^a^'id,   i.r.  jji).o  j^'^.ai'^o'i ,  and  was  en"» 
ti-tled  to  :ir>vo  l3l;t;r-.-.  of  oc'rnin\straFionTs'suer  to  the  person  -w^icm  she 
had  reg.uen1;ed  to  hc^.vo  eiOiDiE.ted  in  her  potitioii,  and  a  decree  v.-as  enter- 
ed  grant ixY;  her  petit\cn.__  From  thir  fj rifting  and  decree  an  f.ppcal  was 
takon  to  this  covrt,    bhr:  said  John  Fairfield  continuing  as  such  admin- 
istrator ponding  the  appoai. 

Several  questions  are  presented  lay  the  appellant,   one  of  ■which  is 
that  th?re  car-,  he  no  such  thing  as  a  conimon  7 aw  marriage  in  this  state; 
th-it  under  ru,v  sfc&.tutory  regulations  a  marriaGe  ceremony  must  he  per- 
formed in  one  of  the  vrays  pointed  out  hy  the  statute  in  order  to  render 
a  rcarriaga  \aJ5.d.       Another  one  is  that  the  pi-ocf  is  entirely  insuffi- 
cient to   astabli-sh  the  marriage  relation'-.hip  b3tv;oen  said  parties,   even 
thouprh  they  could  heoome  hushand  and  wife  by  a  inere  agreement  heiween 
tlieirsiOlves  a?-  at  the  common  law,  according  to  Sf'mo  holdings.     Undpr  the 
vieTi?  w^  have  taken  of  thG  first  point  raised,  \te  do  not   fand  it  nrcep- 
sary  to  pass  upon  the  sufficiency  of  the  evidence,  a^,  after  a  care.rul 
consiceracion  of  all   the  authorities  we  hare  hoen  ahlo  to  find  upon 
this  subject,  we  have  como  to    the  conclusion  that  th^  f\rst  point  made 
liy  the  aFtPellnnt  is  well  taken.      We  fixid  this  to  he  th'=>  case  with  some 
hesitancy,   for  the  greater  number  of  Eidjudicalod  cases  in  this  country 
hold  the  parties  may  contract  the  marr;'age  rela'-ionshi^p  Yy  an  agreement 
"bet^veen  themsej.ves.       In  most  of  the  states  the  statut^iry  previsions 
upon  th£i-su.h.iect  of  nprri^'C^  TnnvP'.  -hpon  -h»^i.=l  f[^TP-r.r.nT<T  -yi'y,   ;>.-nd  ^yere 
thei-e  T;ap  nc  e:cpress  provision  in  the  statutej  declaring  all  narriages 
vCid  otfie?~Lh:m  those  contracted. in  soma  opq  r."  thR  rTLjzr._p:^vlde±-h3t- 
tEe^tatufce  that  the  parties  c^uldJbecogfiL-  h'"-'^'^- •"■•"''  ^^^r^  wife  -hy  _a^-  Eaitual_ 
agreement.    Kir~Bisliop  las:g_3^m-the-d<>c4rJ.afi--y^gy-«4rQag4y-that_u^ 
such  a  marriage  is  ah so3 u  celg^pr ohih i ted  hy  tihe  express  language  rf  the 
s^tute ,   that~rt"~sSouISrhe  ] sue tain(!d ,   and  that  evidence  of  co'hrhitatTon 
a^~of~the~paJt'ies  holdia^Jjbems elves  out  to  the-puhiis  as  ha'-'hand  and 
•m-te.  should  he  safficlent  to  estahlish ^ the  ^elatioa-in_all_casei! . 

It  ^vas  contended  hy  the  appellant  that  the  sections  of  our  code 
•V7hich  prescrihe  hov,-  marriages  shall  he  solerorized,  and  which  also  maJre 
the  exception  that  all  marriages  shall  b©  de.e-:ned  to  hs  valid  although 
the  ceremony  is  performed  by  a  person  not  a^ithoj  i^ed  by  lav  to  perform 
it,  preclude  the  contracting  of  the:  relationship  in  any  other  manner 
than  as  provided;   that  the  legislature  having  made  a  provi.^iion  specially 
legalizing  marriages  in  certain  ei^cepted  cases,  must  be  hald  to  liave 
contercrplated  all  others  not  entered  into  according  to  tlae  manner  pro- 
vided by  the  statute,  and  not  -.vithin  v.h3  exceptions,  as  vord.    ^Je  find 
very  similar  provisions,  ho^rever,   in  oilier  Rtates,  and  u-ndoubtedly  it 
is  the  case  in  the  most  of  them  where  the  validity  of  oorcncn  law  mar- 
riages is  recojraized,  and  the  argument  loses  somethin^g  of  its  force  in 
consequence  of  this. 

It  is  clear  that  in  making  provision  for  these  except^id  cases  the 
legislature  was  of  the  opinion  ttiat  all  attempts  to  establish  the  re- 
lationship other  than  in  accordance  v/ith  the  \vays  provided  by  the  statute. 


25. 

T70Uld  be  void,   and  would  be  eo  held.     Variouc  cafeguardr   aro  throv;n 
around  tho  criteriiis  iiito  thic  rolationchip,  ciaih  as   t>o  requirement  of  a 
liCG2ice  to  bo  firct  procured  before  any  porcouc  can  be  joined  together 
as  huEbaJid  a:id  wife;   and  chould  one  be  a  G'irl  under  the  ago  of  oigMcon 
yoarc  or  a  youth  under  the  age  of  tvjGuty-oue  years,   it   ic  provided  that 
the   licence  sl-^ll  not   ircuo  except  upon  the  concent  of  the  parents  or 
guardians.     It  iie  provided  that  marriage  is   a  civil  contract  vhich  nay 
bo  entered  into  by  men  of  the  age   of   tvventy-cno  years,   and  women  of  the 
age  of  eighteen  years,    cf;herv;ise  capable;   and  it  is  provided  that  none 
under  that  age,   respectively,   shall  inarry  except  tho  concent  of  the 
parents  or  guardianc   chall  first  be  obtained — these  persons  who  are 
supposed  to  be  the  raost  interested  in  the  -volfare  of  the   individuals 
most  directly  concei-ncd,   and  who  would  carefully  consult  zvch  interests 
before  consenting.      If  common  law  marriages  are  to  be  recognized,    this 
provision  becomes  vholly  powerless,   ar  by  a  £.imple  agreement  a  man,   thoi^ 
forty  yearc  a  senior,   scad  a  girl  of  t?E   age   of  tv/elve  years,  can  enter 
into  this  relationship  regaidler.e   of   the  vrfLll  of  the  parents,    or  even 
a  boy  of  fourteen  yearc  could  be  inveigled  into  this   relationship  by  a 
womaii  many  years  his    senior.     It   is    true  such  instances  are  rare,  but 
that  affords  no  reason  why  they  should  be  tolerated  in  any  case.     T/hile 
the  married  state  is  a  mSct  commendable  one,   and  ought  to  be  encouraged 
in  all  legitimate  wa-ys ,  Iiaving,   as   it  does,    its  origin  in  diviiie  law,   it 
seems  to  us  if  the  statutory  ref.uisiteE  are  dispensed  v/ith,   it  TTOuld,    to 
some  extent,   set  a  premium  irpon  illicit  intercourse.      If  a  mere  contract 
between  the  parties,   to  -./hich  there  ai^e  no  witnesses,    is   to  be  recognized 
as  valid,    it   is  evident  that  a  contract  thus  lightly  r-iade  might   as  easily 
be  repudiated,   or  if  cohabitation  and  reputation  v;ithout  any  agreement 
constitute  marriage,    tio  fomer  must  precede   the  latter,  for  it  is  the 
assumption  of  the  relationship  of  matrimony.     If  an  agreement  between  the 
parties  is  to  be  recuiied,  v/ith  the  furthsr  condition  that  it  be  made 
before  come  third  person  as  a  witness,  without  s:iy  other  proof  of  it  or 
any  means  provided  for  preserving  such  proof,   tho  death  of  tho  witness 
removes  all  the  evidence  aside  from  tho  Parties   themselves-.     And  vAiat 
would  be  easier  than  for  parties   to  agree  privately  to  become  husband 
and  vdfe,   and  after  cohabiting  for  a  time,  mutually  agree  to  dissolve  the 
relationship,   or  to  c  a^eal  the  fact  that  they  had  ever  entered  into  the 
contract,  aixL  repudiate  it?     It  is  contrary  to  public  policy  and  public 
morals,   and  revolting  to    Qie  senses   of  enlightened  society  that  parties 
could  place  themselves   in  such  a  condition  that  they  might  mutually  re- 
pudiate ail  arrangement   of  •Qiic  Vrind  previously  entered  into,  v.hatever 
the  reason  might  be,   ard.  yet   this  would  follow  if  ca.imon  law  marriages 
are  to  be  recognised.     By  adheriBe:  to  tie   statutoij^  provisions,   all  ob- 
jectionable cases   of  this  Irini  are  eliminated,  parties  are  led  to  regard 
the  contract  as  a  sacred  one,   as  one  not   lightly  to  be  entered  into,   and 
are  forcibly  impressed  with  the  idea  they  are  forming  a  relationship  in 
vihich  society  has  an  interest,   and  to  ^7llich  the  state   is   a  party.      Illic- 
it intercourse  would  to  a  groat  extent  be  prevented,  a:tL  there  would  be 
no  attempts  upon  the  part  of  eitlier  one  to  foiTin  tho  relationship  in  my 
clandestine  v.txy,   or  a:xy  attempt  by  o;ie  to  overreach  the   otlxjr  in  suih  a 
v.cy,  lCio\/ing  that  such  attempts  vrould  bo  ineffectual. 

There   is  a  growing  belief  that   the  welfare   of  society  demasids  further 


^ 


I 


26. 

restrictionc  ia  this  direction,  and  that  this  v/ill  find  voice  in  future 
legislation;  that  an  institution  of  this  kind,  which  is  eo  closely  and 
thoroughly  related  to  the  state  should  be  most  carefully  guarded,  and 
that  iinprovident  and  improper  raarriages  should  be  prevented.  All  v?is9 
and  healthful  regulations  in  this  direction  prohibiting  such  marriages 
as  far  as  practicable  would  tend  to  the  prevontioa  of  pauperism  and  crimei 
and  tlie  transmission  of  hereditary  diseases  and  defects,  and  it  m?y  not 
be  regarded  as  too  chiraerical  to  say  that  in  the  future  laws  may  be 
passed  looldut:  to  this  end.  Certainly  it  is  a  legitimate  subject  for 
legislation,  tor  tho  stato  has  an  interest  in  each  act,  contract  and 
relation  of  its  individual  members  that  in  any^AdLse  affects  the  public 
welfare  or  tends  to  the  injury  of  the  individual,  and  theee  'Jill  become 
regulated  more  and  more  in  various  ways  as  the  government  of  man  approaches 
greater  degrees  of  perfection,  and  the  rights,  relations  and  responsibil- 
ities of  one  person  with  regai-d  to  another,  and  to  all  others,  become 
better  understood.  Every  thoughtful  person  would  desire  this  should  be 
BO,  even  though  in  some  oases  it  ni^it  seem  to  result  in  individual  hard- 
ship. 

It  is  truo  the  legielature  may  e::i)ressly  provide  that  all  marriages 
not  entered  into  in  thjo  v/ays  pointed  out  by  the  statutes,  and  not  within 
the  e;xeptions  provided  for,  shall  be  hold  invalid,  but  this  affords  no 
reason  for  not  giving  effect  to  the  clear  intention  other',vise  expressed 
in  the  legislation  existii^,  because  the  legislature  has  not  e:<pressly 
declared  all  others  void.  Our  statutes  in  relation  hereto  would,  if  upon 
any  other  subject,  be  held  mandatory  and  prohibitive,  and  v;e  see  no  reason 
why  the  same  effect  should  not  be  given  to  them  here,  for  the  law  could  as 
well  say  that  all  attempted  marriages  should  be  valid,  uotvirithstanding  tha 
statutory  requisites  wore  not  comiplied  v/ith. 

Hov/ever  this  question  is  decided,  it  may  result  in  hardship  in  some 
cases,  but  we  think  the  lesser  injury  will  come  from  an  adherence  to  the 
statutory  requisites  than  otherwise,  to  the  end  that  these  contracts  shall 
be  permanent,  and  not  revocable  at  the  will  and  pleasure  of  the  parties; 
that  parents  may  be  made  responsible  for  the  sui>port,  maintenance  and 
care  of  their  offspring,  and  the  legitimacy  of  tlie  offspring  established 
beyond  dispute.  Our  statute  has  to  some  6:ctent  undortal:en  to  protect 
the  innocent  by  providing  that  children  born  in  unla'^flTul  v/edlocl:  shall 
"become  legitimate  in  case  of  the  subsequent  iutermai-riage  of  the  pairents, 
and  the  legislature  may  go  still  further  in  this  direction  should  it  be 
deemed  advisable,  even  to  the  e::tent  of  conferring  all  the  rights  u;^:>on 
them  that  children  born  of  lav'/ful  wedlock  have.  This,  although  opposed  to 
the  old  doctrine  of  preventing  the  parents  by  punishing'  the  issue,  would 
6©om  to  be  more  in  accoid  vath  principles  of  justice  and  modern  ideas 
thereof. 


Boversed  and  remanded. 


f-«  v-    f^  \ 


Andors,  C.  J.,  and  Bunbar,  Stiles  and  Hoy t,  JJ.,  concur. 


27. 


KE.LLFf  V.  KITK^  COLTITY. 
5  Wash.  521,  18S3. 
Chsr-lgs  KsJ.lcyp  Her.pcrjde.nt ,  v.  County  of  Kitsap  and 

Appeal ~?arS:'.t;3™?a?,"lur9  cf  cue  to  Perfoct— Marriage — 
Oul.iiif.iation  ^.th  I.adia:^  Vtoan. 

AEP&al  from  Su.^eri'.or  Court,  Kitsap  County. 

The   opinion  of  the  court  was  delivered  ty 

Scott»  J» — The  respondent  moves  to  strilce  the  statement  and  to  dis- 
miss the  appeal.,  "becaixse  no  "bond  upon  the  b^'?<:S.l  was  g'.ven,  and  for 
ot>.&r  veasor^a  .s'i-.ated.  Sie  ca.iL-.ty  qnd  said.  "vvVi.'-*.iiEns  h^oh  gave  a  notice 
Of  appeailr  "t-'iit  he  failed  to  g-".ve'a  "bonrl.  Bene  .Is  required  npcn  the  part 
of  ^hsi  c.->t^njy.  Eie  n'tices  of  A^rs^?-  '^p?"'^  siVfioiant  to  give  this  coia-t 
^ur:" sd.ro fc.i ou  of  the  cause  for  tha  corjity,  a^^d  iis  ri.ghts  could  not  be 
a-i'ecved  Dy  the  failni-a  of  the  respordent  W.Uliarss  to  perfect  the  appeal 
up/jL  >i3.s  part.  In  ajil  respects  the  case  was  is^uaarly  appealed,  and  the 
motions  are  denied. 

In  the  year  1B70,  one  Mpl^^Ql  .??llfiyj3i3d  in  the  county  of  Kitsap, 
Territory  (no\v  state)  of  Washington,  and  the  defendand,  T5ieodcr6  Wrlliams, 
edJoiynTst'orod  h.',s  estate.  'Cll:".p^s,  after  hOAdxng  t:.-.e  cs^.at6  for  ahout 
^'l^Tit -jf r-.  mon^'hs,  and,  s6arohii?{j  f^r,  but  f.^nii.lng  no  he.-rs,,  rendered  a 
final  acf.oun-  oi  his  trust,  which  v^s  appr-ov^d  by  the  pro'oate  court  of 
said  county,  and  in  18^^:.  he  tumod  over  to  sai'-d  county  the  sum  of  $1,850, 
the  pr^ceods  of  Ea5.d  est.-'.te  remaining  after  bhe  payment  of  its  debts. 
Che  plaintiff  seeks  tc  recover  this  money  fron  the  defendants  upon  the 
groynl  of  his  bp.ing  heir  to  said  Michael  K^I.toy,  deoeased.  The  county 
of  Kitsap  adm.i.tT-  the  possession  of  the  racnoy,  bni;  by  its  pleading  puts 
upon  the  p3a;-.nti,£f  ths  burden  of  eEtabl-sh:.n5  b'-.s  rr.g-ht  to  the  same; 
that  is,  to  show  himself  to  be  the  child  or  M^^chael  Kelley,  deceased, 
and  his  law:ful  heiro  P.\aintf,:f  contends  that  his  mother,  an  Indiaai 
woman,  who  was  at  some  t^.me  loaovvTi  as  Julia.,  or  Tnl'a  Decartes,  was  the 
wife  of  said  IVIichxaol  JCelley,  and  that  sMd  Eicha'>l  Keiley  was  h^.s  father; 
and  that  he  was  bJicn  at  Port  i3f'5h£.rd;  i:::  srdd  county,  abcit  the  mo?^th 
of  March,  183?,  v7h-.:«e  tho  reja-iou  of  h'j.scand  and  vdfe  existed  betveen 
said  Kelley  and  said  Indian  woman,  oi.a^^^ng  that  his  mcthGr  and  said 
Kelley  v/ere  raarrieu  on  or  about  the  X5th  day  of  January,  1865,  in  said 
county,  by  duly  conpeuling  tc  be  hus'nam  and  wife,  and  that,  after  so 
consenting,  they  d.'.d  oohabit  and  li.ve  together  as  such  agreed  husband 
and  \/if0.  There  is  no  claxn  that  any  marr;'a^e  orremony  was  ever  per- 
formed for  the  part.ies.  it  is  admit :;ed  that  said  Indian  womnn  died  at 
Port  Madison,  in  sail  oourty,  on  or  aVout  lis.y  1,  1837.  There  is  no 
claim  that  p:-.ai:a*  iff  \iZfi   tlia  ,ii.l3S3tiffiatG  child  of  said  Kelley,  and  that 
Kelley  ever  acknowledged  hxns-j'.f  in  ^/ritiag,  signed  in  the  presence  of 
a  competent  witness,  to  be  the  father  of  the  plaintiff.  A  trial  by  jury 
^/as  had,  which  resulted  in  a  vexdiet  and  judgment  for  the  plaintiff. 


28. 

In  re  McLauG:hl.i.n's  3Gtate,  ^--  Mesh.   570  (30  Pac  Rep.  651),  this 
court,  in  considorinf-,'  the  legislo-tive  enactments  theie  involved,  held 
that  marriages  as  at  the  coroiTaon  lav;  were  not  valid  here;  ano.  the      "'~^>o. 
^statutes  in  force  when  it  is  claimed  the  merriage  here  in  question  tool: 
place  are  sufficiently  siinllar  to  the  statutes  consiuerGd  in  the  Uc- 
lauglilin  case  to  trius  tliis  action  x.ithin  the  holdiu:;;  there.  See  laws 
1854,  p.  404;  Laws  XG55,  p.  33;  Lav/s  1859,  p.  24.  Ho  proof  v/ac  maa.e  as 
to  v/hat  ceremonies  were  resorted  to  ty  the  tribe  of  IixLicims  to  -vAiich 
this  v;oaan  belon^-ed  in  ins.rrias©s  a-iong  themselves,  and  there  is  no 
question  here  of  recoa'nizins  or  repudiating;  a  laarriage  T^aich,  accordiag 
to  their  customs ;  they  reco^jaizec".  as  valid.  A  good  dfial  of  testimony 
v;as  introduced  as  to  the  TOiy  Indian  women  -vere  procured  by  v/hite  laen, 
in  v;hich  there  \/as  no  substantial  conflict.  In  such  instances  a  payment 
of  money  ^"as  usually  made  to  her  relatives,  varying  in  prices  from  a 
very  few  to  several  hundi-ed  dollcrs  in  some  cases.  If  she  left  him 
without  cause V  the  Indiaras  would  return  the  money.  If  he  sent  her  away, 
or  loft  her,  they  would  not  return  it,  unless  he  could  show  a  catisfc.c- 
tory  reason  therefor.  As  to  ^/Imt  ^/ore  considered  sufficient  reasons  we 
are  not  informed  by  tlie  testimony;  but  It  is  clearly  apparent  that  ^ito 
men  had  no  difficulty  in  obtainins^'  Indian  'vomeu  to  live  with  them  by 
paying  money  to  their  relatives,  and  tlict  the  practice  was  somev.-hat  com- 
mon in  the  earlier  history  of  the  territory.  The  relation  thus  insti- 
tuted could  be  abemdoned  by  eitlier  at  pleasure,  and  in  most  cases  it  was 
sooner  or  later  abro^p^ted  by  the  act  of  the  parties.  In  some  instances, 
hov/ever,  the  i>artios  continued  to  live  together,  and  v/ero  subsec,uently 
formally  married  to  each  other.  Im   testimony  in  this  instance  shows 
tlx.t  said  Hichael  Kelley  obtc.ined  this  -^/oman  by  paying  two  or  three  Col- 
lars  in  silver  to  her  sisters;  tliat  they  lived  together  a  short  time, 
and  that  she  left  hiia»  she  be  in-  at  the  time  pregnant,  and  tliat  the 
plaintiff  ^7as  the  issue.  All  of  the  testimony  in  relation  to  these 
parties  agreeing  to  live  to:<ether,  and  tiieir  coht-bitation,  was  objected 
to  by  the  defendojits,  and  it  should  have  been  ruled  out  under  the  cir- 
cumstances. Guch  arrangements  could  luirdly  amount  to  marrias'es  under 
any  law. 

Reversed  and  remanded,  v/ith  instructions  to  dismiss  the  action. 

DUUBAE,  G.  J.,  am?.  HOTT,  STILEB  and  ABDEBS,  JJ.,  concur. 


29. 


SLCiiN  V.  WSET 

63  V/ash,  623,  1911. 
116  p  272 

Samuel  Sloan,  Plaintiff  and  Appellant,  v.  D.  W.  Y/eet,  as 
Administrator  etc..  Defendants  and  Appellants. 

Cross-appeals  from  a  judgment  of  the  superior  court  for  King  oounty, 
Altertson,  J.,  entered  August  10,  1910,  upon  findings  and  the  verdict  of 
a^  jury  in  favor  of  the  plaintiff,  in  an  action  tocquiet  title.  Affirmed. 

Chadwick,  J.— This  case  came  on  for  trial  in  the  superior  court  and 
"before  a  jury  under  the  direction  of  this  court  (In  re  Sloan's  Estate,  50 
Wash.  66,  96  Pac.  684,  17  L.R.A.  (U.S.)  960),  vjherein  the  court  said: 

••W9  therefore  hold  that  the  proofs  in  the  record  axnply  show  that  the 
appellant  and  ilary  Steves  vrere  never  lav/fully  married,  and  that  the 
property  involved  in  this  action  is  not  community  property.  If  the  re- 
spondents have  any  interest  in  the  property  as  children  or  gre^children 
of  liary  Steves,  deceased,  the  burden  is  upon  them  to  establish  that  fact, 
as  it  does  not  arise  out  of  any  marriage  relation.  \7e  cannot  anticipate 
the  questions  that  may  arise  in  the  further  pi-ogress  of  the  trial,  and 
all  such  questions  must  be  left  open  for  future  consideration.  V/e  do 
hold,  however,  that  if  it  should  appear  that  there  Vfae  no  lawful  marriage 
between  the  ^pellant  and  the  deceased,  that  tlie  deceased  was  at  all 
times  fully  aware  of  their  meretricious  relations,  and  that  in  view  of 
such  relations  their  property  was  kept  separate  and  apart;  the  respond- 
ents have  no  right  ot  interest  in  the  property  now  in  controversy." 

Heferenoe  to  the  former  decision  may  be -had  for  a  history  of  the 
relations  of  Samuel  Sloan  and  llary  Steves,  or  Ilary  Sloan  as  she  was  known 
prior  to  the  filing  of  the  petition  of  Samuel  Sloan  to  set  aside  the 
property  which  had  been  listed  as  community  property  in  the  probate 
proceedings,  notwithstanding  the  fact  that  the  court  in  its  former 
decision  seems  to  have  held  that  Samuel  Sloan  and  Mary  Steves  were  not, 
and  had  not  been  during  the  many  years  of  their  consort,  husband  a,nd  wife, 
and  that  the  only  question  open  \;as  whether  the  heirs  of  Llary  Steves 
could  bear  the  burden  of  showing  an  interest  in  the  property  arising 
outside  of  the  marriage  relation,  that  question  seems  to  have  "been  gone 
over  again,  and  the  court,  upon  the  whole  evidence,  directed  a  verdict  tc 
the  effect  that  Samuel  Sloan  and  Ilary  Steves  were  not,  at  the  time  of 
her  death,  husband  and  wife,  and  that  there  was  no  community  property* 
At  this  juncture, and  having  found  that  no  community  existed,  the  court 
being  of  tlie  opinion  that,  if  Majry  Steves,  in  her  lifetime,  or  those 
follo\/ing  hor  had  any  interest  in  the  property,  it  v;as  a  question  of 
equitable  cognizance,  he  proceeded  as  a  chancellor,  and  upon  the  record 
as  then  made  and  some  additional  testimony,  decreed  that  Samuel  Sloan  and 
Mary  Steves  were  not  husband  and  wife,  although  they  had  lived  together 
as  such;  and  that 


so. 

"VS/hile  in  lav;  and  fact  said  property  \/as  and  is  tho  separate 
©state  of  Sarone3  SJ.oon,  ha  always  held  out  tho  said  Mary  Slocn  to  the 
world  as  Ms  lau-ful  vrj.fe  diiriug  the  long  period  of  their  cohabitation; 
that  iipon  her  death  he  requested  the  said  J)%  \1,   West  to  act  as   the 
adiainistrator  of  her  eetatGj  and  ropresouted  to  him  that  p<5ld  property 
was  the  community  property  of  said  decoasod  and  himself,  ffbm  a  desii-e 
to  conceal  from  the  world  the  fact  of  their  true  relationship." 

And  further,  that  it  was  agreed  between  Samuel  Sloan  and  Uary  Stovec 

"That  all  property  acquired  "by  tho  said  Samuel  Sloan  in  his  ona. 
name  should  be  the  property  of  the  said  Sa^iuel  Slcan,  freo  and  clera- 
from  ary  right,  title,  or  c3alm  of  the  said  Mary  Stcvs:*!  or  Mary  Sloaa, 
and  that  all  property  acquired  in  the  naiiie  of  Mary  Clean  or  Kary  [jteves, 
should  be  the  property  of  the  said  Uary  Sloan  or  Idary  Steves,  free  and 
clear  of  aay  right,  title,  or  claim  of  the  said  Samuel  Sloan." 

The  court  denied  the  asserted  claims  of  the  acVninistrator  and  the 
heirs  of  Mary  Steves,  but  allovred  compensation  to  the  administrator  and 
his  attorneys,  and  to  llr.  Gephart,  who  has  acted  as  guardian  ad  litem 
for  a  minor  heir. 

As  suggested  in  the  former  cplnS.on,  the  burden  of  sho'.ni:c  .iii  inter- 
est in  the  property  -nhich  Is  now  in  controversy  was  upon  tlie  defendants, 
for  the  law  Is  tliat,  unless  there  be  in  fact  a  laarriagc,  there  can  be  no 
comitiunity  jroperty.  The  one  cannot  exist  without  the  ether,  and  the 
statutory  and  general  prcsimptions  attendin;^-  the  mai'riag'e  state  -whore 
the  community  property  doctrine  ^.s  recognized  have  no  i'oo'ilng.  Thore- 
fore,  instead  of  the  property  being  preswaed  to  be  comtiiunity  property 
because  of  the  cohabitation  of  the  parties „  ;lt  being  prcvfd  tliat  they 
were  not  husband  and  wife,  the  law  puts  it  abpo'li-itely  in  the  one  in 
whose  name  it  is  lodged,  and  it  iiiay  be  held  by  li^m  as  agar'.nst  all  the 
world,,  unlOEB  wrested  by  the  application  of  seme  equitable  priuciple. 
¥e  can  agree  with  tho  trial  court  that  the  burden  has  not  been  sustained 
by  the  defendants.  The  teotinony  is  not  ent--.re'i.y  satisfcctc:  -  on   either 
side.  Sitch  of  it  as  is  entitled  to  consideration  as  evidence  tends  to 
show  that  it  was  the  de&ign  of  the  partjesj  especially  of  Kary  Steves, 
to  keep  tliat  which  she  regarded  as  her  o-^n  sepax'ate  from  the  property  of 
Samuel  Sloan.  It  may  be  that  she  liad  seme  notion  tLat  she  m:.gat  have  an 
interest  in  the  prcpertir  standing  in  the  name  of  Saj-mel  Sloan.  But, 
Whether  or  no,  the  whole  record  tends  to  show  tliat  what  v«is  in  her  name 
she  iregarded  as,  and  intended  to  i^ep  as,  her-  sopar.atG  property.   It 
would  be  idle  to  review  the  evidence  h^re,  believing  as  we  do  ihat  it  is 
wholly  insufficient  to  overcome  the  presujii[,jticn  of  title  to  which  we 
have  alluded. 

The  court  has  found,  and  there  is  some  evidence  to  sustain  his  con- 
clusion, that  there  v.-as  an  Bgreenent  bet\/een  tho  parties  to  keep  their 
property  separate.  Under  the  oft-ropeatod  ruling-  of  this  coiirb,  that  we 
"Will  not  disturb  a  finding  entered  upon  conflicting  testimony  unless 
manifestly  unjust,  we  sh&il  not  discuss  the  question  of  tenancy  ia  com- 
mon and  other  questions  raised  by  defendants  upon  the  theory  that  there 
was  no  such  agreement. 


31. 

An  asP-lemnent  of  error  to  which  counsel  has  devoted  some  strength 
of  argomont  r'.e  l»hat  the  court  orrod  ic  ref aping  »o  ^;itin:.t  all  questions 
of  fact  to  the  .iui-y,    itistfrad  of,   as  it  did,   B^il^mit-tins  the  one  ciuo'^tion 
of  Ferriage,  and  l-herfiaf*-er  de-^^xTnining  ol;h&r  cj.j^sticn-?  a*?  a  chonc^D-lor. 
If  *:h8  rj.ghc  of  defendants  r'.BP'--u-li^d  tipc.-o.  the  q1j3'5ti'^n  o.t  contraot  or  no 
contract  alone,  we  may  aliiit    (withon'j  ueoidjii^")  '"jhai;  thpvo  is  rac-rit  in 
coMiis'^l's  conteutiouo     But  aPide  x'roia  the  questior.  of  ccntract  fcc  djvide 
earnings  and  tn  maintain  ssparate  prcp^rty,  ve  think,  and  have  so  held, 
thiit  the  tejjtii-iionj  -vraB  insufflciant  to  overcome  the  le,??!  prosuirtPtioa-'? 
of  title  floTvlni?  from  the  tenor  of  the  deeds;  hence,   ttiat  no  prejudice 
resulted  T>ecause  of  proceedings  subsequent  to  the  discharge  of  the  jury. 

It  is  also  asserted  thsit  Sainuel  Sloan  should  not  "be  heard  to  deny 
the  cnrmmity  character  of  the  property.     It  :•.£  true  tha.t  ho  pemitted 
the  property  no\7  reaaining  to  he  inventoried  -with  other  property,  a  part 
of  which  1-ias  "boon  sold  to  laeet  detts  and  eirpenses;   and  hir.  present  as- 
sertion,  that  ho  stipposed  the  ::roperty,  ^.;hich  had  "been  in  the  name  of 
Mary  S?.oan  and  v/hich  liad  heen  conveyed  to  a  daughter,  ^as  to^be  included 
and  administered  -.ipon  as  a  part  of  the  estate,   in  not  entirely  satxpfac- 
tory  tc   the  v/riter  of  this  opinion.     Yet  we  feel  that  the  clxiracter  of 
tho  property  is  not  an  open  question.     It  •.7as  squarely  presented  on  the 
former  appeal.     We  l-u-ve  talcen  the  li>)erty  to  rs/iev  the  oriefs  and  rec- 
ord?; in  that  case,   aiid  it  "being  a  qu'^Jit'on  of  la--.'  mere?.y,  we  mn'-.t  ass-^e 
that  tho  court  would  have  so  hold  and  Stnt  th?.  case  'bacl-z  for  distr-.tu'^icn, 
instead  of  holding  that  the  title  to  ths  property  wae  in  Samuel  Sloan 
subject  only  to  defeasance  by  scmething-  noo  a:pr©«iring  in  the  forTPor  record. 
We  have  said  enough  to  cover  the  propositions  .su'oraittec..  by  defendants; 
that  is,    (1)  WaF  there  a  legal  marrie^e  bet\ve*>n  ^^affl'.^el  Sloan  and  Ife^-y 
Steves;    (2)  If  there  v;as  no  vulid  marriag-e    \va&  ?Iary  iiloaAT.  in  her  life- 
time vested  \-ith  any  interest,  legal  or  equiti-bie,   iia.  the  property;  ana 
(3)  has  Samuel  Sloan  ect^)pped  Mmj^elf  from  cla5iiirg  the  property  to  be 
his  separate  propei'ty;   and  vjll  proceed  to  d'.sc^i.ss  the  cro?s-appeai  of 
Samel  Sloan,  ^ffho  comes  here  chai.ienf.lng  the  risht  of  the  court  to  allow 
fees  to  the  adiaj.aistrator,  his  corjasol,  and  the  gniardifm  ac.  litem. 

It  is  contended  that,  no tv.'ithE tending  the  proceeding  is  entitled  in 
probate,   it  is  in  fact  a  suit  to  quiet  title,  and -was  iJC   treated  by  this 
court  on  the  former  appeal,   anC  tliat  the  plead' ngs  preijcm;  but  tvro  3Gsr.es; 
that  is,  vfliether  the  property  in  tjue^tion  was  the  sole  and  separate  prop- 
erty of  Samuel  Sloan,  and  whether  or  not  i^.ry  Steven  died  po^^.tei^.sed  of  an 
equitable  interest  in  any  part  of  the  proporty,  in  the  evont  thp.t  she  was 
not  the  laTv-ful  wife  of  SaMi&l  Sloan;  and  that  tha  co-ijrt,  IiDVing  decided^ 
the  general  issue  in  favor  uf  plaintiff,  ho  oorld  not  grant  relief  to  the 
administrator  and  counsel  because  it  was  not  :urayed  for  in  the  aJisv'crs  tc 
the  original  petition  of  Saiiuel  Sloan,   the  rule  ''leing  that,   in  actions  to 
quiet  title,   the  relief  grantee",  must  conform  to  the  prayer  of  the  bill 
and  cannot  e::tend  beyond  that  prayed;  citing  SE  Gyor,  1?;80,  and  Loeper  v. 
loeper,   51  T?ash.  6Q2,   99  Pco.  10^9-  £.11  of  which  is  true,  and  v/ould  be 
controlling  if  we  v;ere   inclired  to  admit  that  this  is  an  independent  ac- 
tion.    Starting  with  the  pt-euise  tLat  the  t-uperior  cou't  of  Ki.ug  county' 
had.  jurisdiction  of  the   nub^loot-iof-ttor,   it  can  make  no  difference  whether 
the  court  sits  in  probatfi  or  in  equity.     It  had  jurisdiction  to  decide 
the  #iole  controversy;   even  to  purging  its  record  of  that  v;hich  it  could 


,>,^^^  /^f!^^^^^  .^^^'^C*''^^:^^ 


S2. 

not  finally  adjudicate.  The   cases  holding  that  a  court  sitting  ia 
prota'^e  -S  not  rCb^el  of  its  general  equity  pov;ers  v.^ore  reviewed  in  In 
re  Sail,  59  T7ash.  539,  110  Pao.  32,  626.  ¥e  there  quoted  from  the  case 
of  Filley  V.  liii^hy,  30  Uasla.  1,  70  Pac.  107,  as  follo:ws: 

"In  this  state  fre  have  no  probate  court,  properly  gpeal^ing,  as  dis- 
tinguished from  the  court  that  entertains  jurisdiction  of  other  matters. 
The  court  of  general  jurisdiction  also  hecjrs  and  determines  protate  mat- 
ters. Matters  perta-lning  to  pro'bate  are  referred  to  what  is  called 
'probate  procediu:e,«  as  distin^TiiBhed  froin  \Jliit  is  donarainatod  'civil' 
or  'criminal  procedure.'  But  v/hen  the  court,  .-jitting  in  a  probate  pro- 
ceeding, discovers  In  a  petition  the  statement  of  facts  v/hich  forms  the 
basis  of  a  controversy,  we  sea  no  reason  \fhy   it  may  not  settle  the  issues 
thoreimder  an  atppearance  having  been  made  thereto,  and  then  procood  to 
try  it  in  a  proper  nlanner,  as  any  other  civil  cause." 

But  it  does  not  follow  that  an  issue  being  framed  to  try  an  indo- 
pendent  controversy,  the  ccurt  is  to  be  precluded  of  its  right  to  close 
the  case  xmder  its  probate  jurisdiction.  It  is  the  same  court,  operating 
upon  the  same  subject-matter,  -./ith  plensj^  jurisdiction  to  hear  and  de- 
termine; and  altho\igh  it  may,  f^v   its  o-.m  convenience,  divide  its  worS 
into  departments  and  send  an  issue  from  one  department  to  another,  its 
right  to  proceed  to  final  judgment  or  decree  is  net  impaired.  Tho  prop- 
erty ^as  brou^-ht  to  the  superior  court  in  a  probate  proceeding  as  the 
common  property  of  Samuel  Sloan  and  Mary  Sloan,  and  tho  court  er.ercisod 
a  proper  jurisdiction  T^hen  it  held  that  there  Tsas  no  property  for  dis- 
tribution, and  that  the  e:rp6nses  of  the  proceeding  slacild  be  met  by  the 
one  TJho  had  subiaitted  his  property  to  the  court.  Plaintiff  cites  the 
following  decisions  of  th3.s  court  to  sustain  hi,s  contention:  State  e::; 
rol.  Bogle  v.  Superior  Court,  El  Uash,  Dec.  40,  114  Pac.  905,  and  Mich£,el- 
soa  V.  Seattle,  21  \7ash.  Dec,  139,  115  Eao.  167.  But  vre  do  not  conceive 
these  cases  t*  bo  in  point.  Ilhey  were  independent  actions-  "Zhere  v/as  no 
element  of  estoppel,  and  \7hile  v/e  may  admit  that  there  is  no  issue  framed 
by  the  pleadings,  the  diluted  qnesti^ons  ^vere  tried  wo  and  the  findings 
of  the  court  are  witliin  its  jui^isdioUon  and  discretion,  independent  of 
the  collateral  issue  as  to  the  title  of  the  property.  The   administrator 
■was  appointed  %/ith  the  laiovleO-ge  and  accuiescence  of  Samuel  Sloan,  and 
the  attorneys  v/ere  employed  by  Ixim,  and  the  appo-.ntment  of  a  guar^-ian  ad 
litem  was  a  necessary  incidoat  to  the  prooi;,te  prcceediag.  Plaintiff  vas 
a  movii^  party.  He  permistted  liis  property  to  rsinain  in  prcbcte  f«r  sev- 
eral years.  He  allov;od  part  of  it  to  be  sold  to  moot  debts  and  e:;penses-, 
and  he  allov/ed  the  proceeding  to  continue  until  ripe  for  distribution, 
and  then,  because  he  conceived,  as  he  puts  it,  *^at  "they  v/ere  not  treat- 
tag  hla  riglit,"  he  asserts  a  claim  T^ich  on  its  face  was  so  doubtful  tmt 
it  has  talcen  two  a^poals  to  this  court  t^»  set';le  in  his  favor.  The  lav-' 
■will  give  him  his  praporty,  but  v;ill  not  dery  oompousafcion  to  those  v;ho 
have  in  good  faith  done  his  bidding.  As  to  tho  reasenablenoss  of  the  al- 
lo\7aao6  for  fee  a  ar-d  expenses,  we  find  nothing  in  the  record  warranting 
a  review  &r  re'/ersal  of  the  judgment  of  the  lower  court. 

Affirmed.  \^ c  v^    f[, 

MCERIS,   CRCW,  ELLIS,   and  G<3ES,   JJ.,   concur. 


33. 


BUCKLEy  V.  BnCZLEf 

(Ho.  7261.  Decided  Au-UEt  8,  1908.) 
(50  TTach.  2f9T 

Mary  Buckley,  Respondejit,  v.  Andrew  Buckloy,  Appellant. 

Philomeae  Buckley,  Plaintiff  and  Appellant,  v.  Andrew  Buclcleyi  Defendant 

and  Appellant. 

Appeal  from  a  judgment  of  the  superior  court  for  King  county,  Frater, 
J.,  entered  Decomljor  19,  1907,  upon  findings  in^avpr  of  the  plaintiff, 
after  a  trial  on  the  merits  "before  the  court  without  a  jury,  in  ccnsoli- 
dated  actions  for  divorce  and  for  a  diyisipn  of  property.  Af finned. 

Root,  J. --This  is  an  appeal  from  a  judgment  and  decree  rendered  in 
two  cases  that  wore  consolidated  for  trial,  one  "beins  ty  the  respondent 
against  appellant  Andrew  Bucldey  for  divorce  or  annulment  of  marriage 
and  division  of  property,  the  other  teiag  "by  the  appellant  PMlomene 
Buckley  against  app'Ollant  Ao5?.re\>r  Buckley  for  a  division  of  property 
claimed  to  have  "been  acquired  \vhile  he  and  she  were  hushand  and  viife. 
The  matfirlal  facts,  as  found  "by  the  court  and  which  we  "believe  to  "be  sus- 
tained "by  the  evidence,  were  ahout  these:  On  or  atout  the  15th  day  of 
October,  1698,  in  the  city  of  St.__£a3il,  Minnesota.  Mary  Buckley  and  Andrew 
Bucld-ey  entered  into  aja  oral  agreement  of  marriage,  and  then  and  there 
'entered  "into  the  marriage  state.  Thela^?  of  that  state  permitted  conjfion  ^^"t 
Jlaw  marriages.  At  that  time  he  had  a  former  v/ife  living  from  whom  he  liad^  ~ 
never  "been  divorced,  and  she  had  a  former  hus'band  living  from  whom  she 
had  not  been  divorced.  She  had  reason  to,  and  did,  "believe  that  her  for- 
mer hustand  had  obtained  a  divorce  from  her  prior  to  this  time.  She  did 
not  laow  that  AIldre^7  Buckley  had  a  v/ife  living,  or  that  he  had 'ever  "beeg. 
married,  "but  believed  that  he  was  immarried  and  contpetent  to  enter  into 
a  contract  of  marriage  with  her.  Oa.  the  11th  day  of  September,  1877,  at 
Detroit,  Michigan,  appellant  Philomene  Buckley  and  appellant  Andrew  Buck- 
ley intermarried  and  lived  together  until  about  October  29,  1877,  men 
he  deserted  her,  and  has  never  lived  with  nor  supported  her  since.   Ho 
justification  is  shovax  for  this  desertion.  As  a  result  of  this  laarriage, 
a  child  was  bom  in  1878.  Philomene  Bucliey,  believing  that  her  husband 
Andrew  Buckley  had  been  drovnied,  iixtermarr ied  a  few  years  thereafter  with 
one  Young.  IiiJ,9£Q_i^l9mene  Buckley  having  learned  that  her  former  hus- 
band Andrew  BucKLey  was  alive,  brought  an  action  for  divorce  in  the  super- 
ior  court  of  Cook  couiity,  state  of  Illinois,  the  same  being  a  court  of 
general  jurisdiction,  and  she  at  that  time  being,  and  having  been  for  a 
year  or  more  theretofore,  a  bona  fide  resident  of  said  state.  Her  com- 
plaint was  filed  in  said  court,  and  summons  was  served  by  publication  in 
the  manner  and  form  required  by  the  statutes  of  the  state  of  Illinois. 
Thereupon  the  cause  was  brought  on  for  trial,  Andrew  Buckley  not  appear- 
ing, and  the  court  entered  a  judgment  and  decree  disolving  the  bonds  of 
maitrimony  existing  between  Philomene  and  Andrew  Buckley,  but  declining  to 
make  any  order,  judgment,  or  decree  affecting  the  property  of  these  part- 
ies, or  either  of  them,  situate  in  the  state  of  Washington,  As  a  ground 
for  her  action  Mary  Buckley  assigned  cruelty,  personal  indignities,  and 
drunkenness,  (rheee  allegations  were  supported  by  the  evidence  adduced  at 


34. 

the  trial,  and  tho  trial  court  reudored  a  judgment  aoad  decree  annulling 
her  marriage  contract  ^//ith  the  defendant,'  aaid  avn^rding  her  an  undivided 
one-fourth  interest  in  all  of  the  real  estate  of  'said  Andrew  Buckley. 
The  court  ^v/ai'ded  to  i-hilomoiao  "uclrley  an  uiulividod  one-fourth  interest 
in  aJad  to  all  tlie  real  property  belono,ln£;  to  Andrew  Bucliley. 

It  is  tlie   contention  of  Andre;;  Buc'.cley  that  Ilary  Bucliey  never  "be- 
came his  v/ife,  and  that  the  court  waB  ;dthout  authority  to  av.ard  her  any 
portion  of  tho  property  standing;  in  his  name  or  which  he  had  acquired. 
\71:atever  may  "be  said  of  the  right  of  liar?/  Bucldey  to  recover  in  the  foru 
of  action  instituted  here,  it  cannot  "be  doubted  that  she  is  entitled  to 
some  redress  or  coinpensation  in  some  forra.  of  action  against  Andre-,?  Buoio- 
ley.  Under  the  law  of  this  state ^  the  courts  are  called  upon  to  r©g£.rcl 
eul)stance  rather  than  form,  and  it  is  not  the  polJ.cJ'  of  our  law  to  tona 
a  suitor  out  of  one  door  of  the  court  to  come  in  at  {.mother  in  ordev  to 
secure  justice.  Uhere  a  v/ora:n  in  good  faith  enters  into  a  marriage  eon- 
tract  with  a  man,  and  they  assune  and  enter  into  the  riiarriago  state  pir- 
suant  to  any  ceremony  or  agrea^aont  recognized  "by  the  lav;  of  the  place, 
which  marriage  would  be  legal  except  for  the  Incoiapetency  of  the  nsji 
iJhich  he  conceals  from  the  woman,  a  status  is  created  v/hich  v/ill  justify 
a  court  in  rendering  a  decree  of  annulment  of  the  attempted  and  assumed 
marriage  contract  upon  complaint  of  the  innocent  party;  and  v;here  in  such 
a  case  the  facts  are  as  they  have  been  found  here,  ^ere  the  woman  helped 
to  acquire  and  very  itiaterially  to  save  the  property,  the  court  has  juris- 
diction as  between  the  parties  to  dispose  of  their  property  as  it  would 
do  under  Bal.  Code,  Sec.  5723,  {2.   C.  Eec.  4637),  in  a  case  of  granting 
a  divorce— awarding  to  the  innocent,  injured  v/oman,  such  proportion  of 
the  property  as,  xinder  all  tha   circumstances,  would  be  just  and  equitalile. 

••^on  either  party  to  a  marriage  shall  be  incapable  of  consenting 
thereto,  for  vant  of  legal  age  or  a  sufficient  understanding,  or  when 
the  consent  of  either  shall  be  obtained  by  force  or  fraud,  such  marriage 
is  voidable,  "but  only  at  the  suit  of  the  party  laboring  under  the  dis- 
ability, or  upon  wlaom  the  force  or  frauc.  is  in^osed."  Bal.  Code,  Sec- 
4477  (P.  C.  Sec.  6263). 

*^aen  thore  ie  any  doubt  as  to  the  facts  rendering  a  marriage  voW, 
either  party  may  apply  for,  and  on  proof  obtain,  a  decree  of  nullity  of 
marriage."  Bnl.  Code,  Gee.  5717  (P.  C.  Sec.  4631). 

•♦Any  person  \fho   has  "been  a  resident  of  the  state  for  one  year  may 
file  his  or  her  complaint  for  a  divorce  or  decree  of  nullity  of  marriage, 
under  oath,  in  the  superior  court  of  the  county  where  he  or  she  may  le- 
Bide,  and  like  proceedings  shall  be  had  thereon  as  in  civil  casoso"  2al. 
Code.  £ec.  5718  (P.  0.  Sec.  4632). 

In  the  case  of  Pipor  v.  Piper,  46  Wash.  671,  91  Pac.  189,  this 
court  held  th::^t  the  rule  covering  tiie  publication  of  summons  in  divorce 
cases  applied  likev;ise  to  actions  for  the  annvOment  of  marriage.  Ai^wng 
other  things  the  court  said: 

"Appellant  argues  th£.t  an  action  for  annulment  of  a  marriage  is,  la 
this  state,  of  the  sane  nature  as  an  action  for  divorce,  and  that  it  has 


35. 

alv/ays  "been  treated  "by  our  legislaturec  in  the  passaga  of  statutes  as  in 
effect  the  seone.  "Sla  believe  this  is  true.  ...  It  thus  appears  that 
our  legislature  has  invariably  treated  actions  for  divorce  and  for  the 
annulmeat  cf  marriages  as  "bolonging  to  one  general  subject,  and  in  con- 
ferring jurisdiction  to  grant  divorces  it  has  also  been  made  to  include 
the  annulment  of  marriaces.  ...  la  view  of  the  not  uncommon  legisla- 
tive policy  above  Indicated,  as  well  as  in  view  of  tlie  e;g?ress  provi- 
sions of  our  statutes,  vre   thinlc  it  has  been  the  evident  intention  of  cur 
legislature  to  establish  the  saiae  jurisdiction  and  practice  for  both 
divorce  and  annulment  suits." 

In  his  article  on  Marriage,  26  Cyo.  918,  919,  Mr.  Justice  Harlan  of 
the  United  States  supreme  court  says: 

"Permanent  alimony  cannot  be  granted  in  cases  of  this  kind,  for  if 
a  decree  is  made  in  accordance  with  the  prayer  of  the  petition  it  xaust 
adjudge  the  pretended  marriage  void  ab  initio  and  congeq.uently  that  the 
parties  never  sustained  the  relation  of  husbmd  and  wife.  But  where  the 
■woman  is  of  good  character  and  blameless  in  the  affair,  oven  though  the 
marriage  is  declared  void,  she  may  be  entitled  to  i-ecoive  a  eubstcntial 
allowance,  not  technically  as  alimony,  but  by  way  of  compensation  for 
the  pecxmiary  benefits  derived  by  the  man  during  the  supposed  marriage 
relation.  .  .  .  So,  in  passing  the  senjt-ence  of  annulment,  the  court  lias 
power  by  statute  in  some  states,  and  apparently  at  common  law,  to  mal^e 
on  order  for  restitution  to  the  vdfe  of  the  property  which  the  husband 
received  from  her  or  of  which  he  aoc^uired  possession  by  virtue  of  the 
marriage.  And  in  other  cases  vfliere  a  party  ha-s  been  tricked  or  dijiped 
into  a  marriage  and  it  is  annulled,  the  court  may  order  the  restoration 
to  him  of  his  property  fraudulently  accuired  and  converted  by  the  other 
party.  Also  where  the  v;ife  entered  into  the  marriage  in  good  faith  and 
is  free  from  blame  and  it  is  annulled  for  the  fault  of  the  husband,  she 
may  be  allowed  substantial  coixpensation  for  the  benefits  which  he  re- 
ceived or  the  loss  v/hioh  she  suffered  in  consequence  of  the  meirriage." 

In  the  case  of  Werner  v,  Werner,  59  Kan.  399,  53  Pac.  127,  68  Am. 
St.  372,  41  L.  H.  A.  349,  the  supreme  court  of  Kansas  saidJ 

"It  is  true,  as  the  plaintiff  in  error  contends,  that  the  marriage 
between  the  parties  v/as  absolutely  void  from  the  beginning.  Although 
living  together  as  husband  and  wife^  tl^y  v/ere  not  in  fact  married,  and 
hence  no  allowance  could  be  made  as  alimony.  !nhe  rule  is  that  permanent 
alimony  can  only  be  allov/ed  where  the  relation  of  husband  and  v/ife  has 
existed;  but  tliis  rule  does  not  preclude  an  equitable  division  of  the 
property  v;here  there  is  a  judicial  separation  of  the  parties  on  account 
of  the  invalidity  of  the  marriage  contract.  Fuller  v.  Puller,  S3  Kaa. 
582,  7  Pao.  241.  Strictly  ^ealcing,  this  action  as  it  was  tried  was  not 
a  divorce  proceeding,  but  it  was  rather  one  to  annul  a  void  marriage. 
Although  instituted  under  tlie  statutes  to  obtain  a  divorce,  the  plead- 
ings were  so  drawn  and  the  issues  so  shaped  that  it  was  within  the  power 
of  the  court  to  grant  relief  independently  of  the  statutes  relating  to 
divorce  J  and  it  rendered  a  decree  of  nullity,  rather  than  a  decree  of 
divorce.  Ihe  plaintiff  belov;  set  forth  at  length  the  description  and 
nature  of  the  property  which  had  been  aosiuired  by  the  parties,  the  manner 


36. 

in  v.'hich  it  had  teen  acquired,  and  hor  interest  in  the  same,  and  in  the 
Jirayor  of  hor  reply  she  asKc  to  bo  alia  ;ed  a  just  and  sruitable  division 
of  the  sarne  in  case  tho  laarriage  v/at3  held  co  be  null  and  void.  Tlio  court 
in  its  decree  did  not  treat  the  av;ard  as  alimony,  hut  rather  adjudged  ?i3r 
a  share  of  the  property  jointly  accamnlated  hy  the  parties  duriJi^-  the 
time  they  lived  to^-ether  as  husta-Md  and  v/ife.  Puller  v.  Fuller,  supra, 
greatly  relied  on  by  the  plaintiff  in  error,  holds,  it  is  true,  that  iu 
an  action  of  this  character  the  defendant  is  not  entitled  to  recover 
peri^iauent  alimony,  but  at  the  stne  time  it  is  expressly  stated;   'That  in 
all  Judicial  separations  of  persons  'Aio   liave  lived  together  as  husband 
and  wife  a  fair  and  oquitable  division  of  their  property  should  be  had; 
and  the  court  in  ma.lcin^'  such  division  should  inquire  into  the  a'-'ount  tliat 
each  orii^inally  ovmsd,  the  omount  that  each  party  received  while  they 
T/ere  living  to.i,ether,  and  the   araount  of  their  joint  accusnulations.'  B-.'sa 
in  cases  where  the  mai^riage  is  valid,  and  a  divorce  is  refused  for  any 
cause,  the  court  iriay  adjudge  an  equitable  division  and  disposition  of  the 
property  of  the  parties.  Civil  Code,  Sec.  543.  Bnt  independently  of  tho 
statute  of  divoi-ce,  ••/e  thinlc  the  court  had  authority  to  decree,  not  only 
an  annuLaent  of  the  inarriage,  but  also  the  division  of  the  Tproperty  v/hich 
had  boon  jointly'  accurnulated  by  the  parties.  It  was  an  equitablo  pro- 
ceeding and,  -.'ithin  its  equity  pov;er,  the  district  court  had  full  juris- 
diction to  i'ive  adequate  relief  to  tho  parties.  The  division  that  was 
made  was  eminently  oqiii table  and  just.' 

See,  also,  Scrinshire  v.  Schrimshire,  4  Eag.  Ecc.  562;  Arfey  t.  ^ey, 
21  Wash.  261,  60  Pac.  724;  2  Aia.  ^:  Eng.  Ency.  Law  (2d  ed.),  104,  117-6; 
6  Current  lav,  515;  T7srnor,  s-ipra;  Strode  v.  Strods,  3  ir-Jish.  227,  96  Ajn. 
Dec.  211;  Eliot  v  Eliot,  77  V/is.  654,  46  N.  "H.   306,  10  L.  R.  A.  558; 
BarlcLey  v  Dumke,  99  ITe;-:.  150,  87  S.  V/.  ir--7;  Sclby  v,  Selby,  27  E.  I. 
172,  61  Atl.  142;  Etapleberc  v.  Staplobers,  77  Con,  31,  58  Atl.  235;  Gore 
V.  Gore,  44  Hisc.  .?.ep,  325,  89  H.  Y.  Sm?p..902;  Blanlceumies-cer  v. 
Blanlierjniester,  105  Ho.  Aprp.  SCO,  80  S.  T7.706. 

It  is  further  conteMed  by  appellant  Andrev/  Buoiiey  tliat,  inasnuch 
as  Mary  Buc'ieys  con5)laint  herein  v/ac  one  as  in  an  action  for  divorce, 
■while  in  her  reply  to  appellant's  ansv;er  she  prayed  for  a  decree  of  an- 
nulneat  of  marriage,  the  latter  prayer  being  granted  by  the  court,  there 
iwas  such  a  variance  as  should  prevent  her  from  having  any  relief  in  this 
action.  Ve   do  not  thin!:  this  contention  is  raoritorious.  25  Cyc.  SOO; 
TTeruer  v.  T/crner,  59  Ean.  399,  55  Pac.  127, 

It  is  contended  by  the  appellant  iliiloaene  Buc!tLey  that,  after  the 
decree  of  divorce  v©,s  reiidered  in  her  suit  against  Ai^drew  Buc'tley  in  Ill- 
inois, she  and  Andi-e^v  Bucitley  becaine  tenants  in  cojxxaon  as  to  all  of  the 
property  r^iich  he  had.  accumulated  and  ■'hioh  ■'>'as  situated  in  the  state  of 
Uashingtou;  tlir.t  each  became  the  o'iTner  of  an  undivided  one-half  interest 
tloereia,  ant.  tl:iat  she  is  entitled  in  this  action  to  have  the  cotirt  set 
aside  to  her  one-lac.lf  of  all  of  such  property.  XIq   thinle  tliat  -/here  a 
court  of  £  sister  state  grants  a  decree  of  divorce  to  a  wife  residing  in 
that  state  and  calces  no  disposition  of  the  property  belonging  to  the 
parties  and  situated  in  our  stcte  -./here  tlie  husband  resides,  the  courts  of 
this  state  may  tlisreafter  in  a  ticnely  suit  for  p?a'tition,  or  in  any  othsr 
apipropriate  action,  divide  the  property  in  this  state  bet^.veen  the  pai'ties 


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57. 

as  it  would  do  uiacLor  Bal.   Code,  Eeo.   5723   (P.  C.  Sec.  4637)   in  a  divorce 
proceeding.     Adams  v.  ALtott,  21  T/ash.   29,    56  Pac.   931;  WebEtor  v.  Web- 
ster,  2  Has!..  417,  26  Pac.   8G4;   Fields  v.    Fields,   2  Vasn.  441,   27  Puc. 
267;   Cook  V.   Coolc,    56  ^7is .   195,   14  H.  \T.   53,   443,  43  Am.   Rop.    706;    1 
Eucy.  Plead    &  Prac,  415.     In  this  actiou  v/e  thiulr  e-:B   trial  court  ./as 
authorized   io  divide   the  property  of  Andrew  Buclrley  and  Philoiieno  Buck- 
ley betv/oen  them  in  tuch  a  manner  as  it  deemed  just  and  equitable  under 
all  the  circumstances  of  the  case,  and  tliat  it  was  not  obliged  to  divide 
th.e  property  equally  or  in  any  definite  proportions  other  than  would  be 
thus  equitable  axA  just.     The  value  of  tlie  property  was  not  found  by  the 
trial  court.     The  total  value  was  probably  ri5,000  or  $6,000.     Boaxing  in 
mind  that  appellant  Buckley  accumulated  this  property,  and  that  he  is 
now  si::ty-Bix  years  old,   in  feeble  health,  requiring  support,  medical 
attendance,  and  nnrsins,  vs  cannot  say  tZiat  the  disposition  of  tiie  prop- 
erty,  as  made  by  the   trial  court,  T.vas  erroneous,   inequitable,   or  unjust. 

Finding  no  error   in  tlie  record  aud  believing  that  substantial  jus- 
tice has  been  done  as  between  all  these  parties,   the  judgment  and  decree 
is  affirmed. 

Hadley,  C.  J.,  and  Crow,  J.,  concur.  r— -  ^i 

Fullorton,  J.,  concurs  in  ths  result.  

Budkin,  J.    (dissenting) — I  concur-in-the -judsment  of  affirmance  but 
not  in  the  application  of  Bal.  Code,  Eec.  5723   (P.C.  Sec.  4637 L,   to  the 
annvilment  proceedings  of  Mary  Buckley  against  Andrew  Buckley.     Between 
these  parties  there  was  no  marriage,  and  their  property  should  be  divided 
or  distributed  according  to  the  rules  governing  the  division  or  distri- 
bution of  the  joint  aocu^nulations  of  any  other  persons  between  whom  no 
-marriage  exists.     As  applicable  to  such  a  proceeding,   I  approve  the  rule 
announced  in  the  authorities  cited  in  the  majority  opinion;  viz.,   that 
the  court  may  restore  to  the  woman  any  property  tte  man  may  have  acquired 
by  or  througji  her,  may  compensate  tha  -vTOman  for  any  pecuniary  benefits 
derived  by  the  man  during  tba  existence  of  such  relation,    or  may  make  a 
just  and  equitabls  distribution  of  their  joint  accumulations.     But  this 
is  very  different  from  tha  power  exercised  by  the  court  under  Sec.   5723. 
Under  that  section  the-  court  considers  not  only  the  pai'ty  tlirough  v^foom 
the  property  was  acquired,   but  also  the  merits  of  the  parties  and  the 
condition  they  will  bo  left  in  by  the  divorce.     It  not  only  considers 
the  past  but  provides  for  the  future  as  "vvbU.     It  may,  and  generally 
does,  provide  for   the  future  maintenance  aaid  support  of  the  wife,  by 
general  alimony  or  by  an  award  of  property,   especially  •ftiiere  the  husband 
is  at  fault.     None  of  these  considerations  enter  into  a  decree  of  nul- 
lity.    In  the  or©  case  the  property  is  simply  distributed  to  those  vjho 
have  aided  and  assisted  in  its  acquisition.     In  tha  other  case  the  coui-t 
exercises  a  broader  discretion,  distributes   tlie  property  according  to 
differait  rules,   and  adjusts  the  rights,  duties,  and  obligations  growing 
out  of  the  marriage  relation.     It  seems  to  me  that  even  a  superficial 
reading  of  this  section  would  convince  one  that  a  valid  subsisting  mar- 
riage lies  at  its  very  foundation.     I  believe,  however,   that  the  division 
made  by  the  lov/er  court  was  equitable  and  just  under  all  tte  c  ire  cons  tance^ 
without  any  regard  vfliatever  to  Sac.   5725,   ai:ul  thnt  its  ju^.graent  should  be  ' 
af  f  irmed . 


38. 


(Ho.   10S52.     Departjrent  Ono.     Ccto"ber  7,   1312.) 

ASSLJA  SQRTOIiE,  Respondent,  v.   J.aiCS  S-  SCRTOFLE,  Appellant. 

('.'0  ^."ash.  410). 

Appeal  from  a  jiidgmont  of  the   superior  court  for  King  county, 
Byfeacn,   J.,  e:itered  Ijcvcin'bGr  13,   1311,  upon  findings   in  fo,vor  of  the 
plaintiff,  after  a  trial  on  the  neritc  tei'ore  the  court  v/j.thcut  a  jury, 
in  an  action  for  divorce.     Affirmed. 

Crow,  J. — The  plaintiff  an;?,  defendant  mere  narried  at  Victoria, 
^itirh  Colu'j'-jj.a.   on  EecemTjer  3,   1901.     By  hei   criminal  coiriplaint  plaia- 
Fiff  asl-ed  a  decree  of  divorce.     Agsui^st  def end-ant ' s  ohinotxrin;   che  'as 
p^^-mitted  tc  file  an  amended  complaint,   in  Trhich  she  alleged  that  i" or 
fi^i'Y  yoars  she  and  on©  lorenz  Eratz  were  husbana- and  -v/j,£a ;   that  on  Koy- 
emter  7,  1901,   E>e  obtained  a  decree  of  divorce  from  Lcrens  F^atz ,   in 
"Ki^'superior  cou'rt  of  Kxix^  county,  ivhich  decree  prohiuitKi  i^r  from^con- 
tracting  marriage  with  any  tlai.rd  party  vdthin  sirs  mGn-hs  from  its  date; 
that  she  was  then  infomed  and  tolieved  that  her  narr".age  to  a  th?.rd 
party  without  the  state  of  Washington,  valid  v.'iicro  the  ceremony  was  iJor- 
fomed,  would  be  valid  in  this  state;   that  so  tiGlieving,   she  and  defend- 
ant went  to  Victoria,  British  Columbia,  where  they  v;ere  married  on  Doc- 
ember  3,   1901;    that  they  immediately  returned  to   this  state;    that  she 
had  no  intention  of  evading  the  lav;  of  fcrxLs  state;   that  defendaaat  knew 
of  her  decree  of  divorce  from  Lorenz  Eratr-,  and  the  date  of  its  entry; 
that  at  his  solicitation  and  request  plaintiff  aiid  defendant  v/ere  mar- 
ried in  Victoria;   that  the  marriage  then  was,  and  still  is,  valid  under 
tha  laws  of  British  Columbia;   that  plaintiff  then  o-.Tncd,  and  still  owns, 
certain  real  estate  in  the  city  of  Seattle;   that  the  defendant  has  fail- 
ed to  s'Jpport  plaintiff;   tliat  he  has  been  guilty  of  habitual  drunlceuness 
and  e:>ctreme  cruelty;    that  plaintiff  and  defeixlant  lived  as  hv.sband  and 
•wife  in  this  state  from  the  date  of  their  marriage  until  October  19, 
1909;    that  vhen.  plaintiff  commenced  this  action  and  asked  a  divorce,    she 
did  not  inform  her  attorneys  that  she  had  been  married  to  defendant  with- 
in six  months  after  tha  entry  of  her  decree     of  divorce,   and  tliat  she 
did  not  then  Inaow  her  marriage  to  defendant  was  void  under  the  lav.'s  of 
this  state. 

Plaintiff,   in  her  amei:ided  ccinplaint,  a^ked  that  a  decree  be  entered 
annulling  her  marriage  to  defendant,   adjudging  flia  real  estate   to  be  her 
separate  property,  ar^d  awarding  tlie  same  tc  her.     Defendant  by  answer  ad- 
mitted tlie  marriage  at  Victoria,   B.   C,   on  December  3,   1901,   denied  that 
he  then  Iciev  plaintiff  had  been  divorced  for  less  than  six  months,  denied 
any  m-ongful  acts  UE»on.  his  part;   alleged  that  the  plaintiff  representeS; 
to  him  that  she  had  been  divorced  for  more   than  six  montlas;  alleged  that 
the  marriage  ceremony  vjas  perfoi-med  in  British  Columbia  at  her  instance 
and  request,   and  further  r.lleged  that  the  record  title  to  the  real  es- 
tate irentioned  in  the   complaint  stood  in  the  jxjne  of  plaintiff's  daughter 
in  trust  for  plaintiff;   that  it  was  agreed  between  plaintiff  and  defend- 
ant that  after  Iheir  marriage  the  real  estate  should  be  conveyed  to  the 
plaintiff;    tliat  defendant  should  improve  it  so  as  to  increase  the  rental 
value;   that  it  should  thereupon  become  community  property;   that  it  was 


3S. 

so  conveyed  to  plaintiff  after  the  marriage;  that  defendant  expended 
large  Eums  o£   money,  and  performed  person::.!  labor  in  its  improvement, 
and  that  it  is  nov;  the  joint  property  of  plaintiff  and  defendant.  By 
the  prayer  of  his  answer  the  defendant  aslred  a  disraissal  of  the  amended 
coijaplaint.  The  reply  denied  the  affirmative  allegations  of  the  ansv;or. 
The  trial  coui-t  made  findings  sustaining  the  allegations  of  the  amondod 
complaint,  outered  a  decree  annulling  the  marriage,  and  awarded  the  real 
estate  to  plaintiff.  The   defendant  has  appealed. 

yithout  diEuussing  the  evidence,  which  is  conflicting,  v;e  vdll 
state  our  conclusion  that  it  sustains  the  findings  of  the  trial  judge, 
which  \idll  not  be  disturbed.  Appellant  insists  that  the  trial  court 
erred  in  permiitting  the  respondent  to  file  an  amended  coD5)laint,  chang- 
ing the  form  of  her  action  from  one  for  divorce  to  one  for  annulment  of 
the  marriage,  and  that  respondent  cannot  aste  an  annulment  as  she  is  the 
party  whose  incapacity  invalidated  the  marriage  under  the  lav/s  of  this 
state,  t;^  find  no  merit  in  these  contentions.  In  Buckley  v.  Bucldey, 
50  TfeBh.  213,  96  Pac.  1079,  1S6  Am,  St.  900,  v/e  said: 

"It  is  further  contended  by  appellant  Andrew  Buckley  that,  inasmuch 
as  Mary  Buckley's  complaint  heroin  was  one  as  in  an  action  for  divorce, 
while  in  her  reply  to  appellant's  answer  she  prayed  for  a  decree  of  an- 
nulment of  marriage,  the  latter  prayer  being  gi-auted  by  the  court,  there 
was  such  a  variance  as  should  prevent  her  from  having  any  relief  in  this 
action.  Ife  do  not  think  this  contention  is  meritorious.  25  Cyc.  900; 
T/erner  v.  T7erner,  supra." 

See,  also,  Earth's  Adm'r  v.  Barth,  102  Ky.  56,  42  S.  \Y.  1116,  80  Am.  £t. 
335. 

ITot  only  was  it  propeer  to  permit  an  amendment  to  the  complaint,  but 
under  the  evidence  it  was  also  proper  to  enter  a  decree  of  annulment  on 
respondent' e  application,  although  her  incapacity  invalidated  the  mar- 
riage under  the  laws  of  this  state.  Hhe   evidence  shows  that  respondent 
did  not  imovj  her  marriage  to  appellant,  solemnized  in  Victoria  v.ithin 
six  months  after  the  entry  of  lier  decree  of  divorce  from  Kratz,  would  be 
void  in  this  state;  that  apx^ellant  did  kaow  she  had  been  divorced  for 
less  than  a  month;  that  he  did  advise  and  ind-uce  her  to  have  the  ceremony 
performed  in  British  Columbia;  that  they  both  believed  such  marriage,  be- 
ing valid  in  British  Columbia,  would  be  valid  in  this  state,  and  tliat 
respondeat,  although  tlie  incapacitated  party,  v;aE  less  in  the  vo-oag  than 
appellant.  Rem.  &  Bal.  Code,  Sec.  983,  provides  that; 

"T/hen  there  is  any  doubt  as  to  the  facts  rendering  a  marriage  void, 
eitlier  party  may  apply  for,  and  on  proof  obtain,  a  decree  of  nullity  of 
Tnarriage." 

Iliis  section  is  e::plicit  and  sustains  the  decree.  The  fact  that 
under  Rem.  &  Bal.  Code,  Sec.  991,  and  the  ruling  thereon  in  State  v. 
Penn,  47  V/ash.  561,  92  Pac.  417,  17  L,   R.  A.  (H.  £.)  800,  the  marriage 
was  void  in  this  state,  is  no  reason  v^^y  a  decree  annulling  the  marriage, 
declaring-  it  void,  and  adjudicating  tlie  status  of  tba  parties  should  not 
be  entered. 


:c^<  i^-(^ 


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40. 

"If  a  marriage  is  void,  ctrictly  no  proceeding  are  necessary, 
since  the  invalidity  of  each,  c  mcvrriage  may  "be  relied  upon  in  any  court 
and  in  any  procpedjr^s  "betweftn  any  parties,  \/hether  tiio  question  is 
directly  or  ccllaterally  in  question.  Em'^rcon  v.  Shaw,  55  IT.  H.  418. 
420;  Monuntholly  v.  Andover,  11  Vt.  226,  34  An.  I)ec.  685;  Bish-  itar.  £: 
Dlv.  Egc.  46,  But  the  fact  that  tho  narriago  \;as  laiov.n  to  be  void  did 
not  take  away  tlie  pov.er  of  the  occlooiastioai  court  in  Efegland  to  declare 
it  invalid.  Ar-drev;s  v.  Ross,  L.  R.  1  P.  D.  15,  16,  and  cases  cited.  Al- 
thou^li  there  rnay  "be  no  doiibt  in  the  minds  of  the  p^^-ties,  'yet  practical- 
ly it  is  often  of  fie  very  highest  importance,  "both  to  individuals  and 
to  the  community,  tlrtt  there  should  be  a  judicial  adjudication  in  refer- 
ence to  a  void  marriage,  for  then  tho  question  of  the  c.tatu"v  of  the  part- 
ies and  their  children  is  put  at  rest  v.'hile  the  v/itnesses  are  alive;  and 
the  former  are  justified  in  tl3  eyes  of  tlie  community  in  entering  into  a 
secorA  marriage.'  Bish.  Mar.  &  Div.  Sec.  262;  Stew.  Liar.  &  Div.  Sec.  50, 
139,  140,  143;  2  Kent,  76;  Pingree  v.  Goodrich,  41  Vt.  47,  49;  Ea-.7con  v. 
Rawson,  156  Mass.  578,  580,  31  H.  S.  655;  Uisiitman  v.  Uishtman,  4  Jolmc, 
Oh.  (H.  y.)  242,  345;  Patterson  v.  Gaines,  6  Eow.  (Uc  S. )  550,  592,  12 
L.  Ed.  553;  Bickford  v.  Bicicford,  74  H.  H.  448,  69  Atl.  579,  581. 

A  decree  annulling  a  void  marriage  may  be  entered  in  an  action  in 
\Jhich  a  divorce  has  been  asked.  26  Cyc.  900;  Lynch  v.  Lynch  (R.  I.);  83 
Atl,  83. 

Appellant  further  contends  that,  in  av;arding  tiie  real  estate  to 
respondent,  the  trial  judge  made  an  unjust  and  inequitable  distribution. 
The   marriage  bet-.veen  appellant  and  respondent  has  been  nullified  for  the 
reason  that  it  was  void  ab  initio  and,,  as  a  matter  of  course,  there 
■jould  be  no  community  property.  In  re  Sloan's  Estate,  50  'Uash..  86,  96 
Pac.  684,  17  L.  R.  A.  (H.  S.)  960.  Jrica-  to  the  invalid  marriage,  the 
real  estate  belonged  to  resporxlent.  Keeping  pace  v/ith.  tlie  rapid  grov/th 
of  the  city  of  Seattle,  it  lias  enhanced  in  value.  Appellaiit  did  certain 
work  towards  its  improvement,  but  v;as  conpensated  by  respondent  for  the 
greater  portion  of  his  T7ork  and  materinls  v'hich  he  furnished.  Ehe  paid 
all  ta^:es,  special  assessments  and  insurance  charges.  Creditable  evi- 
dence in  tl:e  record  shov.'s  that  improvements  nov/  on  the  property,  includ- 
ing those  made  by  appellant,  add  little  or  nothing  to  its  value;  that 
the  principal  value  is  in  tlie  land  itself  irrespective  of  the   improve- 
ments. She  alleged  agreement  relative  to  the  real  estate,  pleaded  in 
the  ansv/er  and  claimed  by  respondent,  7ra,E  not  sustained  by  the  evidence. 
The   evidence  does  show  that  appellant  has  been  guilty  of  liabitual  di'unk- 
enness;  that  he  violently  abused  and  mistrected  respondent;  that  she  vas 
Qompelled  to  leave  him;  and  that  he  die",  not  provide  for  her  as  hs  should 
have  done.  Under  the  circumstances  and  facts  thus  shov;n,  vre  are  unable 
to  conclude  that  the  trial  judge  abused  his  discretion  in  the  disposi- 
tion of  the  property.  On  tiie  contrary^  v;e  cjre  satisfied  that  justice  lias 
been  done. 

2he  judgment  is  al'firmed.  )- e>  ^        r\, 


Parker,  Chadwick,  and  Sose,  JJ.,  concur. 


41. 

\' 

In  the  Matter  of  th.o  Estcte  of  Uary  Sloan,  Deceased. 

(ITO.   7169.     Decided  J\ily  16,   1908.) 
50  Tfash.  86,   96,  P.   604 
65  TJash.   623,   116  P.  272. 

SAJ.ICJEL  SLOAn,  Appellant,   v.  D.  Tf.  Tfest,   as  Adiainistrator 
et  al.,  RespondentG. 

Appeal  from  a  judgment  of  the  super ioi-  court  for  King  county, 
Pi-ater,  J.,  entered  September  28,  1907,  upon  granting  a  nonsuit  at  the 
close  of  plaintiff's  case,  doiiying  a  petition  for  a  decree  declaring  the 
cumratinity  property  of  an  estate  to  te  separate  proi-jsrty,  for  a  distri- 
bution tl-^reof,  and  to  c^uiet  title.     Reversed.  '^ 

Prank  A.  Steele,  ^Jalter  B.  Beals,  and  Hastings  S:  Steadman,  for  ap- 
pellant . 

17.  E.  Hunctphrey  and  Udv.'ard  Von  Tobel,  for  respondents. 

Rudkin,  J. — Samuel  Sloan  and  Alice  Babcock,   sometimes  kjiown  as  Elsie 
Babkirk,   intermarried  in  Albert  county,  Hew  Bruus'.vick,  about   the  year 
1852  and  remained  husband  arcL  wife  until  the  marriage  vrais  dissolved  by 
decree  of  the  superica:  court  of  Eitsap  counter  on  the  14th  day  of  April, 
1902,  at  the  suit  of  the  husband.     2he  parties  to  this  marriage  lived 
together  in  Uew  Brunswick  as  husband  and  wife  for  some  years  after  the 
consummation  of  the  marriage  and  then  separated.     In  the  year  1868  the 
hixsband  came  to  V/ashington  Territory  and  has  resided  in  the  territory 
and  state  ever  since.     In  12i&  year  1875  !ie  returned  to  How  Brunsv/ick, 
and  there  married  one  Uary  Steves  early  in  the  jrear  187'1-,  v/hile  his 
former  v/ife  was  still  living  and  uiidivorced,      Imediately  after  this 
marriage  he  returned  to  TJashington  Territory  '.-ath  Mary  Sloan  or  I/lary 
Steves,  and  the  parties  continued  to  live  to;;iOther  here  as  husband  and 
v/ife  from  tlaat  time  until  the  death  of  the  latter  on  the   6th  day  of  Feb- 
ruary, 1899.     On  the    19th  day  of  April,   1902,  D.  T7.  T7eEt,   a  son-in-law 
of  IMary  Stoves,  petitianod  the  ciiporior  coiart  of  King  county  for  letters 
of  administration  on  her  estate,  as  the  deceased  wife  of  Samuel  Sloan, 
and  Samuel  Sloan  joined  in  the  petition.     Tne  prayer  of    ftie  petition  was 
granted  and  tihe  administration  proceeded  until  the  Slst  day  of  January, 
1905,  at  v*.ich  time  a  final  account  of  the  administration  v/as  rendered 
and  a  petition  for  distribution  filed.     The  petition  for  distribution 
prayed  that  one-lialf  the  residue  of  the   estate  be  distributed  to  Saduel 
Sloan,   as  surviving  husband,  and  the   otlier  half  to  certain  children  of 
Mary  Steves  by  a  former  husband,  and  to  t?.e  representatives  of  certain 
deceased  cliildren. 

At  this  juncture  Samuel  Sloan  filed  his  petition  in  tlie  estate  mat- 
ter,  setting  forth  his  marriage  with  Alice  Babcock  long  prior  to  his 
marriage  with  llaiy  Steves;    tiiat  his  former  marriage  was  not  dissolved 
luatil  long  after  the  death  of  Ilary  Steves;   tl:iat  Mary  Steves  knew  at  all 
times  that  the  petitioner  had  a  lawful  wife  living;   that  it  v«is  agreed 
between  the  petitioner  and  Llary  Steves  that  a  fair  proportion  of  all 


42. 

pro-oerty  earned  or  acquired  by  them  iShould  bo  g^.ven  to  her  as  her  sep- 
arat'?  evcato;    that   this  agreemeut  was  carried  out,   and  that  liar:;  S*:ovgs 
r?rfi,lved  for  her  ov/n  use  and  benefit  one-half  of  all  property  acquired 
by  chem  in  this  state;   that  the  petitioner  was  absent  in  Alaska  v*ian 
Mary  Steves  died,  and  that  on  his  return  to  this  state  her  son-in-law 
reproEGntcd  to  hiui  that  it  would  be  necessary  to   take  out  letters  of 
administration  on  her  estate  in  order  to  perfect  title  to  the  remaining 
property   in  tlia  petitioner;   that  certain  false  and  fraudulent  repre- 
sentations were  made;   that  the  property  souglit  to  be  distributed  is  the 
sole  and  separate  property  of  the  petitioner  and.  should  be  distributed 
to  him,   etc.     The  allegations  of  this   petition  v;ere  put   in  issnae  by 
answers  filed  by  the  administrator  and  the  heirs  at  law  of  Ilary  Steves, 
deceased,  al'Jd  a  trial  \vas  liad.     At   the  close  of  the  petitioner's  case 
the  court  granted  a  motion  for  nonsuit,  and  from  fhe  judgment  of  nonsuit 
this  appeal  is  prosecuted. 

The  existence  of  the  marriage  betvjeen  the  appellant  and  Alice  Bab- 
cook  is  controverted,  but   tliat  marriage  is  established  by  cle^  and 
cogent  proof.     The  fact  that  the  parties  were  married  about  the  date 
specified,    in  the  presence  of  \;itnesses,  by  a  Baptist  minister  aixthor- 
ized  by  the   laws  of    the  Province  of  Hew  Brunswick  to   solemnize  marriage, 
and  that  they  tlereafter  lived  together  as  husband  and  v/ife  far  some 
years,  was   testified  to  by  both  of  the  contracting  parties  aaid  by  several 
disinterested  witnesses,  and  was  in  no  wise  contradicted  or  contx-overted. 

"The  presumption  of  marriage,  from  a  cohabitation,   apparently  mat- 
rimonial,  is   one  of  the  strongest  presumptions  known  to  the  law.     This 
is  especially  true  in  a  case  involving  legitimacy.     The  law  presumes 
morality,  and  not  immorality;  marriage,  and  not  concubinage;   legitimacy, 
and  not  bastardy,     t.here  there   is   enough  to  create  a  foundation  for  the 
presumption  of  marriage,    it   can  be  repelled  only  by  the  most  cogent  and 
satisfactory  evidence."       Hynes  v.  McDermott,   91  H.  Y.  451. 

Ve  are  not  unmindful  of  the  fact  that  tlie  presumption  which  ordi- 
narily attaches  to  the  first  marriage  is  now  transferred   to  the  second, 
axd  that  stronger  proof  of  the  validity  of  the  first  marriage  is  re- 
quired than  if  the  second  did  not  exist.     The  presumption  v/Mch  attaches 
to  the  second  marriage,  hov/ever,   only  overcomes  a  presumption  of  marriage 
arising  from  reputation  and  cohabitation,   and  is  not  sufficiently  strong 
to   overcorca  such  proofs   of  marriage  as  are  fourd.  in  this  record.     The 
proof  here  is   airgple  to  establish  the  validity  of  the  first  marriage,   even 
in  a  criminal  prosecution  for  bigamy,  much  less  in  a  civil  action  viiere 
property  ri^ts  alone  are  involved.     State  v.   Eean,   10  IT,  H.   347,   34  Am. 
Bee.   162;   Fleming  v.  People,    27  H.  Y.   329;  People'  v.   Calder,   30  Uich.   85; 
Hutchins  v.  IQmmell,  31  Hich.  126,  18  Am.  Rep.  164;  State  v.  Hodgskins, 
19  Me.   155,   36  Am.  Dec.  742;  Damon's  Case,   6  He.  148. 

The  respondents  contend  that  there  is  no  proof  that  banns  were  pub- 
lished;  that  a  license  \;as  obtained;   that  the   officiating  clergyman  v/as 
a  British  subject,    or  that   the  marriage  v/as  not  dissolved.     The  author- 
ity of  the   officer  or  clergyman  performing  the  marriage  ceremony,   and 
all  the  prerequisites  of  a  valid  marriage  \7ill  be  presumed  until  the  con- 
trary is  made  to  appear.     Megginson  v.  Megginson,   21  Ore.  367,  28  Pac. 


y^^>C€^\^'c*^ 


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2. 


I 


43. 

see,  14  L.  R.  A.  540,  and  note.  Both  of  the  contracting  parties  testi- 
fied tliat  the  marriage  between  them  was  not  djsyolvcd  until  long  after 
the  death  of  Mary  Sv.ovgs,  and  this  proof  overcomes  any  presumption  thc-t 
the  court  miglit  otherwise  indulge. 

It  is  f-irther  contended  that  the  appellant  is  estopped  to  deny  the 
validity  of  his  marriage  to  Ilary  Steves,  or  the  fact  that  the  property 
in  controversy  is  the  community  property  of  himself  and  l.Iary  Steves. 
Doub*;leGS  parties  are  sometimes  estopped  to  deny  their  marriage  as  to 
third  x^ersons  who  have  "been  misled  to  their  prejudice,  but,  as  between 
husbaod  and  wife,  and  parent  a-jd  child,  there  is  no  such  status  knovm  to 
tho  law  of  domestic  relations  as  marriage  by  estoppel.  Nor  is  the  appel- 
lac^  estopped  by  reason  of  anything  contained  in  the  administration  pro- 
ceedings. Pilley  V.  Murphy,  30  Uash.  1,  70  Pac.  107;  Hatch  v=  Ferguson, 
57  Fed,  966.  If  there  was  no  lawful  marriage  botw-cen  tho  appellant  axid 
Mary  Steves,  as  a  matter  of  course  there  is  and  can  be  no  coranunity  prop- 
erty. Hatch  V.  Ferguson,  supra;  Zelloy  v.  Kitsap  County,  5  ""Jash.  521, 
32  Pac.  554;  Stans  v.  Baitey,  9  v^ash.  115,  37  Pac.  516;  Houth  v.  Houth, 
57  Tex.  569;  Chapman  v.  Chapman,  11  Tex.  Civ.  App.  392,  32  S.  ^.'.  564; 
21  Cyc.  1636;  6  Am.  &  Eng.  Ency.  Law  (2d  ed.  ),  297. 

Ve   therefore  hold  that  the  proofs  in  the  record  amply  show  that  the 
appellant  and  Llary  Steves  \7ere  never  lavrfully  married,  and  that  the  prop- 
erty involved  in  this  action  is  not  community  property.  If  the  respond- 
ents have  any  interest  in  the  property  as  children  or  grandchildren  of 
Mary  Steves,  deceased,  tho  biirden  is  upon  them  to  establish  that  fact,  as 
it  does  not  arise  out  of  any  marriage  relation.  Ve   cannot  anticipate  the 
questions  that  may  arise  in  the  further  progress  of  the  trial,  and  all 
such  questions  must  be  left  open  for  future  consideration.  We  do  hold, 
hov;ever,  that  if  it  should  appear  that  there  was  no  lav;ful  marriage  be- 
tween the  appellant  and  the  deceased,  that  the  deceased  was  at  all  times 
fully  aware  of  their  meretricious  relations,  and  that  in  view  of  such 
relations  their  property  \'ra.E  ".cept  separate  and  apart;  the  respondents 
have  no  right  or  interest  in  the  property  now  in  controversy. 

For  the  error  in  granting  the  nonsuit  the  judgment  is  reversed,  and 
the  cause  is  remaialed  for  further  proceedings  not  inconsistent  with  this 
opinion. 

Dunbar,  Crow,  and  Mount,  JJ.,  concur.  \  . 

Hadley,  C.  J.,  and  Fulle:rton,  J.,  took  no  part. 


J 


48. 


In  tho  Liatter  of  fhe  Estate  of  R.   Brenchley. 
(96  Uash.  E23.   1917). 


Y/IlHiM  Ho  BEEUCHlIiy  ot  al..  Appellants,  v.  ELIZA.BETH 
BHENCHLiJy,  Ac^uJinistratii::,   Rocpoudcut. 

Appeal  from  aii  ovder  of  tho  supeiior  couit  for  Liucolu  county, 
Sessions-,   J.,  entered  April  11,,   1916,   denying  a  petition  for  fhe  distri- 
bution of  the  property  of  an  estate,   after  a  hearing  before  the  court. 
Af lirmoc . 

llount,  J. — In  til  is  action  the  appellants  seek  to  recover  all  th© 
property  left  by  their  deceased  father..    On  a  trial  of  the  case  below, 
the  court  awarded  one-half  of  the  property  to  tiae  appellaiits_a;;d^  one- 
half  to  the  respondent.     The  facts  are  not  in  dispute. 

On  Hoveaiber  16,   1868,  Richard  Brenchley,   nov;  deceased,   secured,   in 
this  state,   a  divorce  from  his  then  wife.     He  had  two  sons  by  that  marr. 
riage.     These  two  sons   are   the   appellants  in  this  case.     On  December  3, 
1888,  Eidiard  Brenchley  was  married  in  regular  form  to  the  respondsiit. 
At  the  time  of  the  marriage,  respondent  laiew  that  Itr.   Breixhley  was  di- 
vorced, but   she  v;as  not   informed  of  the   date  of  the  decree,   a:id  never  "" 
knov;  there  was  any  question  of  the  legality  of  the  marriage  until   this 
action  was  begun.     She  lived  v/ith  Mr.  Brenchley  in  Lincoln  county,   in 
this   state,  from  the  time  of  the  marriage,   in  1888,  until  his  death, 
wMch  occurred  in  July,   1914.     The  property  in  dispute  vra,s  acquired 
jointly  by  respondent  and  her  husband,  Eichai'd  Brenchley,  between  the 
date  of   the  marriager  and  the  date  of  his  death.     At   the   time  of  his 
death,    the  property  ponsisted  of  real  property  of  the  value  of  §5,500, 
and  personal  property  of  the  value  of  about  $900.     It  aill  stood  in  the 
name  of  !Ir.  Brenchley.     The  appellants  contributed  in  nowise  to  the  ac- 
quisition of  tiE  proper^^^y^  Ihey_did  not  live  vdth  their  father^  but 
lived  in  another  state. 

Under  these  facts,  the  trial  court  \;as  of  the  opinion  that  the  prop- 
erty, bei:jg  acquired  by  the  joint  efforts  of  Itr.  and  Ilrs.  Brenchley,  even 
thougli  the  marriage  was  void  by  reason  of  the  fact  that  it  -v/as  contracted 
within  six  months  after  tlie  decree  of  divorce  from  Mr.  Brenchley 's  first 
wife  was  rendered,  still  respondent  was  entitled  to  one-half  of  the  p-rop- 
erty  60  acquired. 

It  is   arg"ued  by  the  appellants,  first,   that    fc.e  marriage  was  Toid 
because  it  was  contracted  v.ithin  si::  months  after  tlie  decree   of  divorce 
between  llr.  Brenchley  and  his  first  vafe.     This  position  may  be  conceded, 
and  we  shall  notice   it  no  further. 

It  is  ue::t  argued  by  the  c^pellants  that,  because  the  marriage  was 
void,  the  property  acquired  by  ZIr.  Brenchley  was  his  separate  property, 
in  v,hich  Llrs.  Brenchley  had  no  interest.     This  argument  is  based  largely, 


46. 

if  not   entirely,  upon  decisionc  of   this  szA  other  courts  to  the  effect 
that,  v/liere  tliere   is   no  coutract  of  mari-iagG,   oi-  vherc  tho  contract   is  a 
inorotriciouE  one,    the  property  accniroc':.  dui-ing  tho  relation  belongs  to 
the  one  acruiring  it.     'Ihe  factr  in  this  case  are  conclusive  that  the 
contract  of  marriage  was  not  meretricious,   but  was  entered  into,   and 
kept,    in  good  faith  by  both  parties.      The  evidence  conclusively  shows 
tliat   the  respondent,  when  sho  narried  l!r.  Brcnchley,   Imew  that  he  load 
been  divorced.     She  did  not  taiov/  the   time   of  his  divorce,   and  sho  did 
not  taiov;  that  tte  lav/s   of   thic  s-tate  x'^rohibitod  marriage  v/ithin  six  months 
after  a  decree  of  divorce.     She  canie   to  this  state  a  few  months  before 
the  marriage.     Tliere  is  no  evidence  that  Ilr.   Brenchley  actually  laie\7  of 
the  statute  prohibiting  marriage  within  sim  months  after  a  decree  of  di- 
vorce.    But,    even  if  ha  loaev/,    or  nay  be  presumed   to  have  loaovm,    that  fact, 
the  result  -.yould  be  the  same,   for  they  lived  together  in  the  utmost  good 
faith,   each  contributing  to  the   accumulation  of  tlio  propert;^'  now  in  dis- 
pute.    Tne  record  shov/s   that  tlie  respondent  kept  boarders,   kept  a  lodging 
house,  was  a  njrso  and  mid\/ife,  and  contributed  her  earning-s  to   the  pay- 
ment of  tlae   obligations  \Jhich  purcliasod  the  property.     Under  these  facts, 
it  is   clear  that  she  is  at  Qaast  entitled  to   one-half  of  tlie  property, 
v/hich  the  covart  avcxded  her,   notvathstanding  the  fact  that  the  marriage 
was  void-      lu  tho  case  of  BuclcLey  v.  Buc:j.ey,    50  Uash.   213,    96  Pac.   1079, 
1E6  Ara.  St.   900,   this,  court  said: 

'•Ohere  a  woman  in  good  faith  enters  into  a  marriage  contract  v/ith 
a  man,   aiid  they  assume  and  enter  into  the  marriage  state  pursuant  to  any 
ceremony  or  agreement   reco^iiaed  by  the  lav;  of  the  place »  \iiich  marriage 
v/ould  bo  legal  oiccept  for  the  incompetency  of  tlio  man,  vhich  he  conceals 
from  tho  woman,  a  status  is  created  which  will  justify  a  court  in  render- 
ing a  decree  of  annulment   of  the  atteraped  and  asLumed  marriage  contract, 
upon  complaint  of  tlie    innocent  Party;  and  where   in  such  a  case   tl:ie  facts 
are  as  they  have  been  found  here,  vchore  the  woman  helped  to  acquire  and 
very  materially  to  save   Cio  property,  the  court  has  jurisdiction  as  be- 
tween the  parties,   to  dispose  of  their  property  as   it  would  do  under  Bal. 
Code,  Sec.   572o   (I.  Oc  Sec.  4637),   in  a  case  of  granting  a  divorce — 
awarding  to   tlie   innocent,    injured  woman  such  proportion  of  the  property 
as.  under  all  tho  circumstances,   vculd  be  just  and  equitable." 

In  that  same  case,  Judge  Hud'.cin  concurred  in  tlie  result,  but  did  not 
agree  to  tho  ground  upon  x^aiich  tlie  decision  was  placed.  He  said,  at  page 
224: 

"I  approve  the  rule  aimouncGd  in  the   authorities  cited  in  the  major- 
ity opinion;  viz.,    that  tliO  court  may  restore  to  the  v/oman  any  property 
the  taan  may  have  acquired  by  or  through  her,  may  compensate  the  v/omaji  for 
any  pecuniary  benefits  derived  by  the  man  during  the   e::isteuce  of  such 
relation,   or  uay  malK  a  just  and  equitable  distribution  of  their  joint 
accumulations ." 

So,  whether  the  respondent  a:id  llr.  Brenchley  were  legally  married, 
or  not,  they  themselves  supposed  they  were  legally  married.  Ihey  lived 
together  as  man  aij:].  "./ife  for  a  period  of  twenty-six  years.  During  that 
time,  each  laboring  to  a  common  interest,  they  acquired  tlie  property  in 
dispute.      If  IJr.  Brenciiley  were  no\.'  alivo,   and  v-ore  seeking  to  avoid  the 


«  .^ 


-^Zo 


^'^^■^i'C'C^^ 


iZ,-!-*-*;*''***'*-*-*-*^ 


47. 

marriase  iDecausG  it  v/as   illcg?!  at  tlie  time  it  v;a£   entered  into,  no  cocrt 
\;ould  say  thai  iio  might  take  advaatage  of  his  oxni  vn-ong  and  have  a  decree 
discolviug  the  raari-i>-\~o  iDOcauso  it  \jl.i  illegal,   and,  at  the  same   tirae, 
take  all  the  property  accuiTitilatod  "by  the  joint  efforts  of   the  two.     An 
equitable  division,   at  least,  v-onld  be  made,   aaa  respondent  would  be 
given  oue-lialf  the  proiierty,  which  is  all  the  court  in  this  instance 
awarded  her.     The  appellants  have  no  better  rights   thsoi  their  fr.tlier 
would  have  were  ho  no\-/  .;.live  and  seeking  the  sarac  remedy. __SeciJla&tgoL. 
Coatc,   160  Cal.   671,   116  Pejc.  Ml,   o6  L.IL.4;,,X^I'S  « )  844,    and  cases  there 
cited;~aIso  Lav/son  v.  Lav.son,  50  Teg.   Civ.  App.  43,    69  L.   '.'.   246. 

In  the  case  last  cited,   tlio  plaintiff  had  lived  vdth  her  husband  in 
good  faith,  baliovii\'i  that   there  was  a  legal  marriage.     'Ihe  property 
accumulated  during   thit  ti.ae  '..'as  treated  as  partnership  property,   and  v/as 
divided  as  such.     In  that  case,    it  \."as  said: 

•'In  Llorgan  v.  Lorgx.,   1  Tenas  'Jivil  ^^peals,   515,   Justice  Head,   in 
his  discussion  of  tlie  principles  unc.er  \/hich  the  putative  wiro  acting  in 
good  faith  miglat  have  her  just  riglits  secured  to  Iier,    entered  into  a 
thorough  review  of   the  authorities  and  held  th£=.t  the  tendency  of   o-ur 
courts,   as   evidenced  by  the  decisions    involving  kindred  questions, 
justified  the  conclusion  that  she  should  be  treated  at.  a  partner  as   to 
all  i)roperty  shovn  to  have  been  acquired  by  their    joint  efforts.' 

That   is   the  just  rule,   aiic   is    the  one  applied  by   tlae  lower  couit. 


The  judgment  appealed  fro.a  is,    therefore,    affirmed. 
Ellis,   C.   J.,  Parker,   Full.2rton,   and  Holcomb,   JJ.,  concur. 


^t.^^t^-^^-i^-y'  _.ef^^--<^^^^^\y^L^i..,.,.^<:^ 


'^t^c?     c^a^^^     ^1.^       e^-^^^-^jgi^-C^^  ^ 


^^^-o^^c^^  '' 


^^^- 1-  f\Ji^ 


48, 


Llaria  Z.  iovvei'S,  Respondent,  v.  7iufield  I.  Powofs 
et  al.,  Appellaiios. 

(iJo.   16425.  Lopartrnout  T>vo,  S^.terabGr  30,   1921.) 
(17  Dec.  17S). 

xlppeal  fiom  a  jud^acat  of  Cie   suporior  court  foi   Asotiu  coxinty, 
Hiller,   J.,   oute.oc".  ItaGouilDor  28,   1S20,  upon  findings  in  favor  of  tlae^ 
plaintifXj   i-i  an  actiau  to  a:mul  a  marria^o  and  for  a'djxlsioa  of 
property,   trieS^to   ths  coint.     Affiiined. 

Main,  J. — die  purpose  of  tliis  action  v/as  to  annul  a  void  marriage 
and  have  a  portioIiTof  tlie  propoity  -c-ich  tlio  parties  had  acquired  during 
tie  time  thcit  . they .vere  living  together  as  liusLarid  aiid  \-ife  decreed  to 
Gig  plaintiff.     Hoe   trial  resulted  in  ^f  iudi:.£,s  of  fact,   conclusions  of 
lav.'  ai^ii  a~  jud^iaent  a:i-iullin;3  tlxo  i:;arriage  and  decreeing  certain  property 
to  the  plaintiff.     From  this  judgi.ient ,    the  defsndc.nt  appeals. 

Tlie  controversy  hei'e   is  over  the  property.     Ihere  is  no  controvarcy, 
or  at  least   tliere  ic  '.lO  room  for  controversy,   ovor  the  annulment  of  the 
void  inarriase.     The  facts  as  found  by  the  trial  court   ^nd  which  tlie  evid- 
ence sustains  may  'oe  sumnarized  as  follows:     In  the  spring  of  1900,   in 
the  state  of  l.innosot.a,    -.he  respondent  cjid  appellant  entered  into  an 
asree:7ieut   to  live  together  as  huslo^id  aiid  -./Ho.,  v;hich  ■'•■'ould  constitute  a 
la\rtul  ..uiri^,^je  mider  the  la\jE  of  that,  slate-if-'botia  parties  .•.;ere 
co;apetent  to  narryj  end  continued  to   live  together  as  husband  and  wife 
until  the  ;nonth  of  Liar  eh,   1919.     Dvning  all  tAc  tiue  the  aiPpollant  hold 
the  respondent  out  as  hi:^    ;ife,   ij-cioduced  hex   as  such,   and   fhe  ie£_-ond- 
enfbelieved  heiielf  to  be  hie    dfe.     Tlis  appellant  l-.c.c  a  ■  df e  living  iioai 
who,.i  he  hac.  not  been  c^ivoiced,  bat  informed  the  respondent   that  a  divorce 
had  been  had.     At  the  tine  of  the  attempted  rnairidee,   the  reSi^ondent 
beli^v^d  that  the  appellant  ^''as  conpetent-  to   eutex   into  that  relation, 
xho  Parties  lived  toi'ethei   as  husbaiid  and  -'ife  for  a  fe-.'  jionths  in  the 
state  of  I.irii.esota,   then  moved  to  the  state  of  Monta^ia,  where  they  re- 
sided until  the  year  1901,  -.-hen  the^^  noved  to   the  ctate  of  Idalio,  vhsre 
they  continued   to  res  ids  until  tl:ey  rernovGd  to  Asotin  county,   this  state, 
in  the  month  of  July»   1917,     During  the   ciie  thay  vvere  residing  in  the 
state  of  Idalio  tl^e  appellx:t  filed  rpon  a  ho^nestead  of  one  hundred  and 
si::ty  acre:;,  made  fins!  proof  tho_eon  and  recei-ad  a  patent  theiefor. 
The  respondent  liled  a  timber  ai'.d  stone  claiui  upon  appro^cL.iately  Ojis 
hu:^r_-ad  f.cv2.  foity  ac:. et   or  g0"3:ni--.ent  la::d,  majde  final  proof  thereon  sZid 
received  a  patent  tha::exor  i-\  hei   o-.-n  nane.     In  t'n e  3''car  1917,  '30th  the 
hoiaestead  aial  the  timber  clai.n  "ere  sold  a:id  there  '.'as  received  therefor 
w..e  suii  of  v4,600.     ierconal  pi  op 01  ty  to  the  a-aouiit  of  ;"'1,500  \;a6  also 
sold.     As  a.  part  consideration  i'or  tlie  Idaho  land,   re^.l  estate  in  Asotin 
county  ■  hich  is   no-  in  cont:.ovei£y  vas  taken. 


49. 

him,  and  that  tho  respondent  v-as  not  his  ''ife.  He  also  informed  the 
respondent  tliat  the  deed  to  the  Asotin  property  vas  in  his  narae  a::d  that 
she  had  no  interest  therein.  At  this  time  he  made  a  lease  of  the  Asotin 
property  to  the  respondent  which  she  accepted  without  knowledge  of  her 
rights.  After  this  the  appellant  toolc  all  the  money  remaining  from  the 
salo  of  their  propovties  and  returned  to  live  with  the  wife  to  whom  ho 
had  "been  legallj''  married. 

'There  a.re  a  number  of  questions  argued  in  the  briefs,  but  it  seems 
to  us  the  decision  of  one  of  them  is  detominative  of  the  action.  The 
parties  lived  together  as  husband  and  \;ife,  the  respondent  believing,  in 
good  faith,  tliat  thoy  v.-ero  such,  and  during  this  time  the  Idaho   property 
was  accuired.  The  timber  claim  belon:,er.  to  the  respondent  and  the  home- 
stead to  the  appellant.  Both  the  real  and  perronal  property  which  the 
parties;  disposed  of  at  the  time  they  ccjne  to  this  state  had  been  acquired 
by  their  joint  efforts  while  they  •■eie  living  together  as  hucband  and 
wife   though  not  legally  jnarried.  Under  the  facts,  tl-je  court  had  the 
po'ver  in  the  action  to  a:mul  the  void  mairiage  and  to  a^.vard  to  the 
respondent  such  portion  ol  the  property  as  she  v-'as  equitably  and  justly 
entitled  to.  Bucldey  v.  Buckley,  50  /ash.  213,  96,  Pac.  1079,  126  AiA. 
Lt.  900;  In  re  Brenchley»s  Estate,  96  '.ash.  2^'o,   164  Pac.  91S,  L.  R.  A. 
1917E  968;  Knoll  v.  I^noll,  104  Wash.  110,  176  I'ac.  22.  2hs  court  did 
not  err  in  av/arding  to  the  respondent  the  Asotin  f)roperty. 


The  judgment  'will  be  affirmed. 


\' 


v-V. 


Parker,  C.  J.,  Mitchell,  Mackintosh,  and  Tolman,  J. J.,  Concur. 


.^^^>^     ^^^ 
^J^. 


^^..^^  >  >  ^^t-*..  ^ 


/, 


.;flff-<'^^ 


50. 


UORHAU  v.  nOHJ,;AII.        (L.  a.  469.} 

(121  Cal.    620) 
{Lupreme  Court  of  California.     Aug.  9,  1898.) 


Cornmir.siouers'   decision.     Depai^taeat  2.     Appeal  from  superior  coiirt, 
Los  /jigGles  county;  II.  T«  Allen,  Judgo, 

Action  by  Homer  ITonnan  against  Janett©  Thomson  ITorman.     From  a 
Judgmont  in  favor  of  defendcvat,  plaintiff  appeals.     Affirmed. 

Chipman,  C.  .ActiDA_to  have-a_cerj;aia.rn^riase_t).e.t:weea_plaintiff 
and  defendsjQt  declared  valid  and  binding  upon  the  parties.     A  second 
sSencCed~con5)laint' alleged:     That  on  August  2,  1897,  defendant  -.vaE  a 
minor  Of  the  age  of  15  years  and  10  months,  and  that  her  father,   one 
A.-CHiomsoa,  jy/asher  natural  and  only  guardian.    Plaintiff  -vas  of  the 
ageof  21  years  and  10  months,   and  "both  plaintiff  and  defendant  -.vera 
citizens  and  rosidents  of  Los  Angeles  county,   Cal.     On  said  day  plain- 
tiff aiid  dofeixLant,    at  Long  Beach,,   on  the  coast  of  California,   boarded 
"ascertain  fishing  ard  pleasure  schooner;. of  17  tons  burden,  called  the 
•'J-  "Jilley,"  duly  licensed  under  tlie  laws  of   the  United  States,   of 
■sfliichXilo  Pierson  v;s.£  captain,   and  \/aE   enrolled  as  master  thereof, 
and  had  full  charge  of   said  vessel.     Said  vessel  proceeded  to  a  point 
on  the  high  seas  about  nine  miles  fro::i  the  nearest  point  from  tlae  bound- 
ary of  the   state  and  of  tiie  United  States.     Hie  parties  then  and  there^ 
agreed,   in  the  presence     of  said  Pierson,   to  become  husband  and  v;ife^ 
and  the  said  Piercon  performed  the  ceremony  of  marriage;   and     among 
other  things,   they  promised  in  his  presence  to  tak3  each  other  for  hus- 
band and  wife,   and  he  pronounced  tliera  husband  and  v/ife.     neither  party 
had  the  consent  of  the  father  or  _mot!ier  or  guardian  of  dcf eixlant  to 
said  marriage.     Oi\  th$  same  day,   and  imtiedi ately  ai'tor  said  ceiemony. 
iho  parties  retua-ned  to  the  county  of  Los  Angeles ;   and  have  ever  since 
resided  there,  _  a;xL  they '"Caen  "and. ^tliare  iminediately  began  to  live  and 
cohabit  tog-Gtlier  as  such  husbaixl  and   vife,   and  continued  so  to  do  until 
the  10th  day  of  August,   1897.     Said  marriage  has  never  been  dissolved, 
defendant  denies  the  validity  of  said  marriage,    sad  refuses  to  join  in 
a  declaration  tiareof .   .Defendant,  by  l^r  gtiarc.ian  ad  litem,   admits  the 
allegatious  of  tie  complaint;   and  alleges   that,    in  liavix^  tie   ceremony 
performed  as  alleged,  plaintiff  and  dcfendsuit  did   so  -vith  Cae    intent 
and  for   the  purpose  of  evading  the.  statutes  of  the  state  prescribing 
tjhe  ma;Tner  in  wliioh  marriages  shall  be  contracted  and  solemnized-     She 
prays  dat   tl-B  said  pretended  marriage  be  declared  illegal  and  void, 
a^id  that  plaintiff  be  precluded  a:-il  estopped  from  ever  setting  xip  or 
assertiag  or  claimiiig-  to  "be   the  husband  of  defendant.     The  court  fou^d 
all   Qic    jllogatio:^  of  the  complaint  aixL  answer  to  be  trueV  and,   as  " 
coTiClusion  of  la^',   found  that  plaintiff  was  not  entitled  to  the  relief 
cl^-medj  but^tTaat~the   said  preteiDj.ed  marriage  was  illegal  and  void,   and 
judgpient  \as  entered  accordingly.     Sie  appeal  is  from  tiie  judgment. 
Hie  action  is  brought  urder  section  76,   Civ.   Code.      It  must  be  conceded 


51. 

that   tliG   quertion  iireseuted  by  this   appeal  is   ono  of  much  importance, 
v/hethoi'  viewod  in  its  rolatiou  to  society,    or  to  the  pai^tiQ;S   only. 

Appellant  coutQMds    (1)   tliat  ■ih.Q  marriase  is  valid  tecause  perfoi-ni- 
ed  upon  the  hi,3;h  soac;   and   (2)    tliat   it  would  liavo  been  valid  if  por- 
formod  v/ithin  dis  etate,  bGcausa  th&ro  is  no  law  c::piCSiEly  dGClaring 
it  to  bG  void.     Eespondont  procentc  the  case  upon  tvo  propositions, 
claiming  (1)  tliat  no  valid  raarriaje  can  bo  contracted  in  this  state, 
eiccept  in  complianco  ^/ith  tho  proscribed  fcc-mG  of   the  laws  of  this  state; 
and   (2)    that  citizous  and  domiciled  residents  camiot  s,'0  upon  the  high 
soac  for  the  avowed  purpose  of  ovjjdin^s'  tho  law  of  this  state,   sjiCu  con- 
tract a  valid  iTiarriago. 

Sections  4082.   4290,    722,   Hev=  Lt-   U.  S.,    arc   citsd  by  appellant 
as  reco^iiiziiiS  laarriages  at  sec  and  lieforo  foreign  consuls,  a:i.d  that 
section  722  declares  the  coramon  law  as   to  rnarr j  age  to  be  in  force  on  tlie 
hi^h  seas  on  board  Ai^norican  vGscals.     T/e  have  carGfully  examined  tlae 
statutes  referred  to,  and  do  not  find  that  thoy  fjive  the   <:li~:htest  sup- 
port to  appellant's  claim.     'Hie.  law  of  the  sea,   as   it  may  relate  to  the 
marriage  of  citizens  of  the  United  Statos  domiciled  in  California,   can- 
not be  referred  to  the  coi.Tmon  law  of  liaglai^-;   any  more   than  it  can  to  tho 
law  of  France  or  Spain,   or  any  other  foreign,  country.     Tie  ca:a  find  no 
law  of  congress,   a;ai  none  has  bejn  pointed  out  by  appellant,    in  vhich 
tho  general  government  lias  undei-tal:en  or   assumed  to  legislate  generally 
upon  tho  subject  of  marriage  on  tlie   sea.     Ilor,    indeed-  can  -.ve  find  in 
tCio  grant  of  po-vors   to  the  general  govGrnnjoi^t  by  the  several  states,   as 
expressed  in  tho  national  constitution,    any  provision  by  -.vhich  congress 
is  empowored  to  doclare  what  shell  constitute  a  valid  marriage  between 
citizens  of  the  several  states  upon  tha  soa,   eith(ji'  within  or  without 
tlae  convention::.!  thi-oe-milo  limit   of  the  shoro  of   a:."  state;    -CuiC.  clearly 
does  no  such  poweiu  rest  in  congress  to  regulate  marriages  on  land,   e:c- 
copt   in  th3  listrict  of  Columbia  t;id  tlie    territories  of   tie  United  £t?.tGS, 
or  whore  it  possesses  tho  power  of  eiiclusiva  juxisdiction.     T.'c  must  look 
olsGwhcre  than  to   tho  acts  of  eongrGSs  for  -Eau  law  garerniii^g  tho  case  in 
ha::d.     Section  63  of  tlio  Civil  Code  provides  as  follo'>;s:      "All  marriages 
v-lthout  this   state,  wliich    vould  bo  valid  by  thvi  laws  of  the  country"  in 
which  the    sane  v/ere  contracted,   ai'e  valid  in  tliis  state."       Ihe  parties 
i-^   tlie  present  case  '.-ore  residents   of,  a::d  domiciled  in,    this:  state,    aac. 
"i.3  it  upon  tlB  high  seas    to  be  married.,    with  the   avo\/ed  purpose  of  3vac-i:"-g 
our  laws  relating  to  marriage.      It  seems  to  be  '.^ell  settled  that   tlus  mo- 
tive in  tlio  minds  of   the  parties  mil  not  diajige  the   operation  of  the 
rule.     Chief  Jvistice   Gray,    in  Com    v-   Lano,   IIG  It^ss.  458,    said:      "A 
liiarriage  which  is  prohibited  here  trj  statute,   because  contrary  to  the 
policy  of  our  laws,    is  yet  valid  if  cGiobrated  elsewhere  according  to 
the  la\.'  of   the  place,   evci   if  tin  parties  are  citizens  and  residents  of 
tliis  commonwealth;  aixl  liave  gone  abroad  f  ca-  the  purpose  of  evading  o"ar 
laws,  unless  the  legislature  li£.s  clearly  enacted  that  such  marriages  o\".t 
of  the  state  shall  have  no  validity  >jere."     This  has   been  repeatedly  af- 
firmed by  well-considered  dGcisions.     'Sx)   authorities  are  fox-d  fully 
reviewed  in  that  case,   as   they  also  will  be  found  in  si'.pport  of   the  gen- 
eral rule  in  Llillilten  v,  Pratt,   125  liass.  574,   by  the  same  learned  jurist. 
Seo,    alsO;   as  to  marriages  in  evasion  of  the  lav.?  of  thi  domicile  of  tlie 
parties,   Bish.  Liar,  c;  Div.  Sec     880  ot  seq.     If  the  marriage   in  ruestion 


J 


52. 

can  find  support  by  tlie  laws  of  any  country  having  jurisdiction  of  the 
parties  at  tlie  place  v/iiere  the  marria{Te  ceremony  v;as  performed,  -.ve 
should  feel  constrained  'oj^  our  code  rule  and  well-considei-cd  decisions 
to  declare  it  valid  here,  even  though  the  parties  vjere  here  domiciled  at 
the  time,  and  went  to  the  place  where  they  attempted  to  te  married  for 
the  purpose  of  evading  our  laws,  which  they  "believed  vor'bade  the  tanns. 
But  the  parties  did  not  30  to  aio-y   other  state  or  couiitry  to  "bo   married, 
The'j  Trvent  upon  the  hi£;h  seas,  \.'here  no  'written  law,  of  v;hich  we  have  any 
knowledge,  existod  ty  v;hich  marriage  could  "be  solemnized.  The  rule, 
therefore,  that  the  la\7  of  the  place  inust  govern,  does  not  operate,  be- 
cause tlT&re  was  no  law  of  tlae  place,  unless  v:e  may  hold  that  the  lav;  of 
the  domicile  applies.  The   question  presented  is  res  Integra,  so  far  as 
■^.•9  have  been  able  to  discover,;  and  no  case  in  lingland  or  the  United  State?. 
or  elsewhere  has  been  found  by  counsel  (and  tl:eir  briefs  disclose  mudi  re~ 
conrch  and  industry)  holdin'7  tliat  the  code  rule  siipra  applies  to  such  a 
marriage  as  this.  In  the  case  of  Holmes  v.  HolmeE,  1  Abb.  (U.  S.)  525, 
Ped,  Cas.  Ho  6,638,  the  question  "was  v/hother  a  marriage  had  been  contract- 
ed under  the  laws  of  California  or  Oregon.  It  seems  that  the  parties, 
who  v/ere  doaiciled  in  Oregon,  met  in  San  Francisco,  and  there  took  passage 
on  the  steamer  foi*  Portland.  It  -was  at  the  trial  sucgested  that  th3 
marriage  miglit  have  taicen  place  on  board  this  vessel  v/hen  on  the  high  seas. 
Thei-e  was  no  evidence  that  the  parties  aver  met  else^vhere,  except  in  Cali- 
fornia and  Oregon.  In  the  opinion  by  Deady,  J.,  it  ^^as  said,  after  shov:- 
ing  that  theie  was  no  valid  marriage  under  tha  lav;s  of  either  of  these 
states:  "Nor  do  I  think  that  citizens  of  this  state  (Oregon),  as  the 
complainant  and  deceased  -oi-e,  can  purposol3r  go  beyond  its  jurisdiction, 
and  not  within  the  jurisdiction  of  another  state, -as  at  sea, -and  there 
contract  marriage  contrary  to  its  lav^s.  Such  an  attempt  to  be  joined  in 
marriage  is  a  fraudulent  evasion  of  the  laws  to  v;liich  the  citizen  of  the 
state  is  subjedt  and  o\;es  obedience,  and  ought  not  to  be  held  valid  by 
them."  It  is  said  by  appellant  that  this  expression  of  opinion  is  but 
dictum,  inasmuch  as  the  question  did  not  necessarily  arise.  This   may  be 
true,  but  it  commends  itself  to  o;ir  judgment  as  wise  and  sound  upon 
reason,  and  principle.  V/e  find  no  case  holding  that  parties  domiciled  in 
a  state  may,  for  the  avov/od  pvirpose  of  evading  its  laws,  go  where  no  law 
exists,  and  there  consuj-nmate  marriag'e  in  violation  of  the  la/^  of  their 
domicile,  and  inraediately  return  and  claim  a  valid  marriage.  In  all  the 
cases  •.'here  the  statutes  have  been  thus  circumvented,  it  ^ras  accomplished 
by  a  marriage  valid  in  the  place  vhere  celebrated.  The   Gretna  Green 
marriages  of  Scotland  between  citizens  of  England  are  notable  examples, 
and  tl::e.y  v.'ere  upheld  by  tlxo  ecclesiastical  courts.  But  these  marriages 
were  solemnized  in  accordance  •..ith  the  laws  of  Scotland,  and  therefore 
had  legal  sanction;  and  so,  also,  marriages  in  this  country  of  citizens 
of  one  state  going  into  anotlior  to  avoid  some  disqualification  prescribed 
in  the  law  of  their  domicile. 

It  has  been  properiBy  held  that  as  marriage  is  a  natural  rirht,  of 
Tvliich  no  government  will  .allow  its  subjects,  ^/herever  abiding,  to  be  de- 
prived, if  tl'-.e  psTties  happen  to  bs  sojourning  in  a  foreign  country,  and 
tinder  tl-&   local  lav  there  is  no  \'ay  by  which  they  can  enter  into  valid 
marriage,  they  may  marry  in  their  ovm  fonas,  and  it  v.-ili  be  recognized 
at  home  as  good,  Bish,  liar.  &  Div.  Sec.  690  et  seq.  But  this  author 
says:  "in  reason,— l<or  we  liave  piobablg  no  adjudications  of  the  question,- 


55 . 

a  marriage  void  l^y  tho  ?.aw  of  the  placo  of  its  celeliration,    in  a  case 
where  such  It-w  provide.-:,  no  valid,  method,   v/cul^i  aot  "be  macLo  good  by  the 
rulG  v:e  are  ocnsider.Tng,    if  tj3  parties  v;ert  there  simply  to  avoid  com- 
pliance vdth  the.  law  of  their   domicile.     Tliere  v/ac  no  necessity;   i?.:r 
their   c.^m  law  was  open  to  them  at  home,  aad  it  vtjuld  not   assist  them. 
in  eluding   its   inhihitions."     And  he  refers  to  the  case  oi'  Holmes  v. 
Holmes,   supra,  romarlcing,   "It  would  perhaps  "be  the   sane,  &.lij0,  where 
the  resort  vqs,  for  the   Ixlce  purpose,   to  an  vminhahited  region  or  the 
high  seas."     In  the  case  before  us  the  parties  not  only  -.-.Tent  -rtiore 
there  was  no  law  authorizing  thj  marriage,  hut  they  ^.ent  \ith  fee  in- 
tention of  imtediatoly  returning  to  their  domicile,  v/here  they  supposed 
the  law  would  not  admit   of  tlieir  marriage,   to  enjoy  the  fiuits     of 
their  contract.     There  was  no  necessity  upon  the  parties  to  do  this, 
suddenly  arising,   or  arising  from  une:ipected  surrounding  circuiasta:nces; 
"but  the  circumstances  v.'ere  of  their  avm  creation,  and  for  a  purpose  to 
evade   the  lew  of  their  home.     Hiere  is.,  we  conceive 3   no  ground  of  e::- 
pediency,   sound  policy,    or  good  morals  upon  vThich  the  transaction  can 
he  given  legal  sanction.     In  summing  up  the  doctrine,  Lx-  Bishop  says 
(Id.  Sec.   920):       'Tlierofore  the  rule  necessarily  is  that  vJieBO''er  a 
marriage  is   entered  into,   so  that  the   laws  of  one  country  talce  cogni- 
zance of  it,   it  will  he  accepted  as  a  marriage  in  every  other  country, 
also.     On  the  other  hand,  no  forms  matrimonial  v^ich  come  short  of  con- 
stituting valid  marriage  in  the  one  country  will  so  bring  it  within  the 
cognizance  of  international  law  as   to  make  it  valid  elsewhere."      T/e 
thinlc  it  results  from  considerations   of  reason  and  principle  that,  un- 
less it   appears   that  this  marriage  vrcic  consummated  under  soiie  recognised 
la-w,   tlie  courts  of  this  state  should  not  declare  it  valid;  and  we  think 
tha  burden  is  upon  appellant  to  shov;  such  a  law,   failing  in  v;hich  his 
suit  must  fail.     The  authorities  are  many  to  the  point   that  tha  party 
who  relies  upon  the  foreign  law,    or  law  of  another  state,   must  prove  the 
law  by  its  production.     Cases  cited  at  section  119,  Stew.  Mar.  L  Div. 

Respondeat  cites  the  case  of  Crapo  v.   Kelly,   16  T/all.   610,  where 
it  was  held  that,   in  the  case  of  an  assignment     in  insolven.cy  in  the 
state  of  Ilassachusetts,   it  carried  v.ith  it  a  vessel  then  in  the  Pacific 
Ocoau;   and,    in  an  elaborate  opinion,    it  was  shovm  that,  e::cept  for   the 
purposes  slecT   to   the  e;:tent  tliat  certain  attributes  have  been  transferred 
to  the  United  States  by  tl-E   several  states  of  the  Union,   each  possesses 
all  the  rights  and  powers  of  a  sovereign  state,   and  that  the  vessel  in 
question  "was  a  part  of  the  torritoiy  of  t::e  state  of  Hassachusetts,   al- 
though at  the  tiiDS   in  tin  Pacific   Ocean,   and  that  ths  laws  of  Ilassachu- 
setts would   ;,overn  the  assignmen-t.     It  is  hence  argued  by  respondent 
that  the  law  oi  the  domicile  in     the  present  case  should  govern.     There 
is  much  force   in  this  position,   but  v/e  do  not  deem  it  necessary  to  place 
our  decision  on  ttiat  ground.     T/e  think  tha  law  of  the  domicile   of   the 
pai'ties  must  be  the  law  by  ^'hich  to  judge  the  vaD.idity  or  invalidity  of 
tlais  marriage,    upon  tha  grounds  already  stated. 

rro  are  thus  brougit  to  tlie  only  remaining  question:  \7as  the  mai'- 
riage  valid  tested  by  Gie  laws  of  California?  If  this  marriage  can  be 
uphold,  it  must  be  upon  the  sole  groun?.  tliat  there  T^yas  mutual  consent, 
solemnization  by  a  sea  captain,  and  subsequent  ccliabitation  as  husband 
and  \;if e  for  tho  space     of  eight  days.     '.That  constituted  marriage  in 


54. 

tliJs  rtatfj,  prvor  to   the  aniendrcents  of  tlie  C'^do  in  1895  and  1907,  vas 
preT;ty  -.veil  settled,  ai:.d  uaed  not  he  restate.',  horo.     Jjn   'he  lij*.t  of 
the  history  of  past  litl;;ation,    it  cught  not   to  te  diTfi-.iVlt  to  deter- 
mine v'aa.t  is  a  valid  marriage  under  eixictius  lav/,     ^ectuui  cf,   CiVo 
Code,  as  a'nencled  in  1S95,  provided  e.s  follcvs:     "llaxrri-age   is  a  personal 
relation  arisir^  out  of  a  civil  oontrar-.t,   to  vfcich  the  consent  of  the 
parties  capatie   of  malci.ng  that  contract  is   ueceGcary.      Consent  al^ne 
vill  not  constitute  rna-i-riaifa;   it  must  be  followed  hy  a  colemnisatioa 
authorized  ty  this  Codec"     I7o  particular  form  of  colemuir.ation  is  re- 
quired,   "hut  the  parties  nust  declare,   in  the  pre~enee   of  the  person 
solemnizing  th£.  marriasf^,    that  they  take   each  other  as  hnshaud  and  wife." 
Id.  Leo.   71.     Section  70,    Id,,  provides  a£  follows:      "Liarriage  may  te 
Eolei-nniiiod  ty  either  a  justice  of  the  supreme  co;irt,   judt'^e  of  the  sup- 
erior court,   justice  of  the  peace,   priest,   or  minister  of  the  gospel 
of  ciiy  denominatixn."     Irior   to  the  amenc^jiient  of  1895  the  consent  to 
marrJage  v;as  required  to  "be  followed  either  by  "a  solemnization,   or  hj* 
a  mutnal  asnuaption  of.  marital  rig^hts^  duties   or  obligations,"     Sec tion 
55.     The  amencliTBiit  added  the  words  "authorised  by  this   Code"  after  the 
v/ord  "solemrl^ation, "  and  struck  out  the  v.ords  above  in  italics.        It 
seems  to  mo  tliat  the   intention  of  the  legii^jature  is  plainly  declared, 
that  consent  mxist  be  followed  by  such  solernization  ao   is  authorized  by 
the  Code,    or  there  can  be  no  valid  marriage,  aM  tha'!:  this   solemnization 
can  only  be  performed  by  the  persons  mentioned  in  section  70,   supra,   for 
no  other  persons  are  so  authorized.     Prior  to  1895,   oe?,txon  75,    Id., 
provided  for  marriages  by  declaration,  without  the  solemnization  re- 
quii-ed  by  section  70;  but  the   act  of  Llarch  26,    1895,    swept  away  that 
easy  process  of  marriage.     Section  68,    Id.,  v;aE  also  amended     in  1895 
in  an  important  particular.     It  nov;  reads;     "Marriage  must  be  licensed, 
^olemnized,   authenticated,   and  recorded  as  provided  in  this  article^, 
but  non-compliance  v.lth  its  provisions  by  othsy  th-in  the  parties    to  ^ 
marriage  does  not   invalidate  that  marriage.'     The  v.t>rds   in  italics  were 
added  to  the  section  as  it  formerly  stood,  ard  vould  seen  to   imply  tliat, 
v/hile   there  may  be  non-compliance  with  the  law  by  parties   otter  than 
those  see'iing  marriage;    there  cannot  be  by  the  latter.     Section  76,    Id., 
now,   as  heretofore,  ma'ss  provision  for  supplying  the  evidence  of  mar- 
rio,ge  -.iiere  no  record  of  the   solemnization  is  known  to  e:ciEt,   and  a  form 
of  -vvitten  declaration  is  prescribed.     JLjie'.:  section  (79-o-)  was  added  to 
the  Civil  Code  in  1897 ,   which,  provides  thp.t  "the  provisions  of  this 
^".mpter,  so  far  as  they  relate  to  procuring  licenses  and   the  solemnizing 
of  marriage,  are  not  applicable   to  members  of  any  particular  religious, 
denomination  he-v lag,   as  sruch,   any  peculiar  mode  of  entering  the  marriage 
relation;   but  such  mai-riages  shall  be  declared  as  provided  in  section 
seventy-si;:  of  the  Civil  Code  of  tlus  state,   and  shall  be  aOniowledged 
and  recorded  as  provided  in  section  seventy-seven  of   said  Civil  Code." 
Section  69,    Id.,  provides   that    'all  persons  about   to  be  joined  in  mar- 
iiage  must  first  obtain  a  license  thex-efor  from  the  county  cler'.c  of   the 
county  in  v;hich  the  mai^riagc  is   to   be  celebrated,    shovang:      (Then  follow 
ceitain  facts  vJiich  must  appear,   such  as  names,    identity,  and  ages  of 
the  parties,   etc.)"     T/lien  a  marriage  may  not  be  invalidated,   although 
th^re  has  been  noncompliance  -.Tith  the  provisions   of  article  2,  Sec. 
68-79I-,    "by  other  than  the  parties   to  the  marriage,"  need  not   now  be 
determined.     In  this   case  there  was  no  license;   tliere  v/as  no  solemniza- 
tion by  any  person  authorized  by  la%7  to  perform  thj3  ceremony,    there  vas 


55. 

no  mari-iage,  under  section  19^.     To  recognize  such  a  nurriage,   \^  think, 
would  grooEly  violate   tlij  cpii  it   and  letter  oi   our  statute  ^   and  be  a 
'olot  upon  the  civilization  "v.-e  proi'ess.     To  give  the  law  any  just   inter- 
pretation,, v/G  ffliist  hold  tliat,  subject  to  the  exception  mentioned  in 
section  79i-,   section  55  recu-iies,   not   only  the  concent  oi  parties  capable 
of  making  a  contract  of  maiviage ,  but  that  Vr^t  consent  mu?it  be  follcwod 
"by  a  soleiuni nation  authorized  by  the  Code;  and  tiiis  solemnization  can 
only  bo  perfornad  by  the  persons  named  in  section  70o     Tfe  do  not    thinlc 
it  necessary  to  decide  '-Aietter  it   is  mandatory  to   obtain  a  license;   nor 
\;hetl-i2r  the  minority  of  the  defendant,    and  \;ant  of  consent  of  her  par- 
ents or  guardian,   would  invalidate  the  irarriage.      Our  conclusion  rests 
upon  the  want  of  any  authorized  solemnization,    and  \/ould  bo   the  same  if 
the  parties  were  both  oi'  full  ti,»?e.     Tic  recommend  that   tlie   judgment  be 
affirmed. 


^e  concur:      BELCHER,    C;  HAYHSS ,    G.  ^  ^  ,^      D -e- i- 

PER  CURIAM.     For  the  reasons    jiven  in  tlie  foregoing  opinion  the 
judgment  is  affirmed. 


I 


^^    ^ 


,    /'^     f         y.^^'U*-— ^«s^^ 


..^   ^\^:A^  //w^^.^^^*^ 


56. 


LA-VEOR  et  al.  v.  lATiSOn. 

(Court  of  Civil  Appeals  of  Texas.     June  2,   1902.) 
(SO  Tg::,   Civ,  Api^.  43) 

Appeal  from  district  court,   Ft-  Bead  county;  Sponcer  C.  Rucsoll, 
Special  Judge. 

Suit  ty  Caroline  Lavrson  against  Harry  Lawson  and  Vir^^inia  YZallcor 
lav/soii  ana  iier  Tour  minor  c:iilc\ien.    ~From  a  decree^  for  plaintiff,  tlie 


minor  defendants  appeal.     AfiiimecL, 


Gill,   J.     This  suit  was   instituted  on  the  27th  day  of  AuG,ust,  1900, 
"by^tjae  plaintiff  ,J2arolino_  la-wsgn,  _  ::^ains±  the  dafendcnt  Harry  La\vson 
fOT^lvovce  end.  partition  of  coimunity  properiy.     Vir.p.nia  rfclter  La\v- 
s_on  and  hor  four  minor  cliildren  were  made  parties  defendant,   as  claim- 
ants_ of  tlB  property   in  controversy.     lu  respect   to  the  property,  plSin- 
tiff  pleaded  in  flic  alternative  tha't,    if  the  court  should  hold   she  v^as 
not  the  lawful  wife  of  Harry  Lawson,   then  an  undivided  half  interest 
therein  should  nevertheless  "be  adjudo"ed  to  her,  because  th2  property 
was  acquired  by  the  joint  labors  of  I-Brself  and  the  defendant  Harry 
lawEon  v/iiiie  livin-;  to^-eflier  as  hxisband  and  wife  in  the  honest  belief 
that  they  had  been  legally  married.    Defendants  Harry  Lawaon  and  Vir- 
ginia ^."alker  Lawson  aasvrared  jointly  by  exceptions,   ^.ereral  denial,  and 
pleaded  the  statute  of  litoitations  of  two  and  foui:  years.    B,  K.  Peare- 
Eon,    appointed  by  the  court  as  j^Tiardian  ad  litem  for  the  minor  defend- 
ants,  adopted   the  ansv/er  oi  Hariy  and  Virginia,   and  filed  also  a  gen- 
eral denial.     Upon  this  state  of  tlie  pleadings  a  trial  was  had  before 
the  court  without  a  jury,   and  tlE  court  adjudged  that   the  plaintiff  had 
never  been  legally  married  to  Harry  Lawson,  and  the  prayer  for  divorce 
was  refused.     But  the  court  found,  as  hereinafter  more  fully  shovrn,   that 
the  property  had  been  acquired  by  the  joint  labors  of  Caroline  and  Harry 
while  living  together   in  the  honest  belief  that  they  were  husband  and 
v/ife,   and  that  as  the  evidence  furnished  no  guide  by  which  to  determine 
the  proportions  in  which  each,  respectively,   contributed  to  its  acquisi- 
tion, plaintiff  should  be  adjudged  the  owner   of  an  undivided  half  in- 
terest therein,   and  have  her  decree  of  partition.     Only  the  minor  de- 
fendants,  through  their  gnaardian  ad  litem,  have  appealed. 

The  conclusions   of  fact  prepared  and  filed  by  the  trial  judg-e  find 
sufficient  support  in  the  evidence,  and  contain  such  a  clear  and  con- 
cise history  of  the  case   that  '.ve  are  content  to  adopt  them,  and  here  set 
them  out  in  iUll:   _^'Prior  to  ttie   emancipation,    the  woman  Caroline,  \^o 
is    the  Caroline  La v.s on,  plaintiff   in  thic  case,   and  one  Alf  Uoodc  were   r^<^T5 
the   slaves  of  one  Smith.    ^That   in  the  manner  usual  among  sieves,   and  — 
wi^th  the  consent  of  their  master,   the  said  CarolTne  and  Alf  lived "to^ 
get^er^ac^hTls band  and  -wife,   and  were  such  as  near  as  slaves  could  b"e. 
"^n^at  after  emancipation  they   continued  to  live   together  in  such  rela- 
tion for   several  months,  until  about  Christmas,   1865.     That  then,   or 
j;hortly  thereafter,  Alf  quit  Caroline,   and  afterwards,  some  tin©  in 

JL867,  he  married  one  Rachel  ,    in  due  form  of  l^v.     Thereupon,   and 

in  the  s ane  'ysaf ',"Carol ine" and  Harry  Lavi!L.on,  _ii£  defendant,   made  and 
^tered  into  an  agreement  to  be  man  and  wife,--and  thereafter  lived 


57. 

tosother  as  such,  ami  wore  laao\vn  and  resarded  ae  such  in  the  noightor- 
hood  in  v^iich  tliay   livod  and  held  thamtelves  out  to  tte  v.orld  as   such 
until  about  1889  or  1890,  when  Eaxry  forced  Caroline   to  leave  the  house 
\^ere  they  lived.     Ho  lot  her  occupy  a  house  on  the  same  premises  until 
about  1899,  but  did  not  further  live  with  her,   or  in  any  vay  treat  her 
as  his  wife.     All   the  prcfioerty  in  controversy  v;as  acquired  by  the   joint 
efforts  of  Caroline  and  Harry,   in  Gae  same  maimer  as  if  tiey  had  been 
actually  husband  and  vrife;   but  in  wlir.t  proportion  their  respective  labors 
contiubuted  to  such  accuiiiulation,   I  cun  unable  to  say.     Alf  Uoods  dieo. 
in  1897  or  1898.     From  all  tl-je  facts  and  circumstancos  in  the  case,    1 
fiixl  that,    in  snterin^-   into  the  contract  of  mairiasQ  vdth  La%v5on,   Cai'ol- 
ine  did  so  in  the  utmost  ^^oa".   faith,   not  luaowiia;^'  or  believxDG;  that  she 
v/as  tlTc  wife  of  I/oods,   or  that  her  living  \dth  him  after  emancipation 
would,   in  law,   act  as  a  ratification  of  l:ar  slave  maa-ria-e  with  him,   aad 
that  from  1867  to  1890  she  v;as  tlie  do  facto  wife  of  Lawson.     From  the 
date  Of  feis  marriage  vath  Rachel  until  his  death,  Woods  lived  -.ath  her 
in  tlie   same  general  nei^rhborhood  as  did  Caroline  and  La\/son,   and  there 
is  nothing  to  show  or    indicate  but  that  Caa'Oline  throujaout  this  time 
was  aware  of  the   fact  that  TJoods  v/as  still  alive.     I  fird  that  in  abouf 
1899,  aad  several  years  after  drivius-  Caroline  off,  and  a  year  or  two 
after  the  death  of^foods,  Laws  on  married,    in  d-oe  form,   Virginia 'Talter, 
by  ^*om  he  had  already  had  three  illejitimate  children,   all  of  v/hom, 
together  with  a  child  born  since  their  wedlock,    are   the  defendants   in 
tliis   cause,  ard.  that,   about  a  weelc  or  ten  days  before  the  institution 
of  this  suit,   Lav.Eon  conveyed  to  his  then  wife  and  the  said  four  minor 
children  the  309  acres  of  land  and  the  15  or  16  head  of  cattle  and 
horses  which  had  been  acquii-ed  dui.-inj  his   relationship  with  Caroline, 
and  throu^  their   joint  efforts,  and  \vhich  are  the  effects   in  contro- 
versy herein;   that  tlae   said  conveyance  was  without   consideration,  and 
was  made  by  La-'.vson  to  keep  any  oiie  vdio  might  have  claims  upon  him  from 
seizing  said  property.'' 

Appellant  contends   that,    if  it  be  conceded  tliat   the  fact  conclu- 
sions find  sufficient  si^port  in  tie  evidence,   the   judgment,   neverthe- 
less,   is  wron^:     First.     Because,  even  if  plaintiff  believed  she  was 
the  lawful  wife  of  Harry  Lawson,   she  knew  all   the  facts,   and,   as  her 
belief  rested  in  a  mistake  of  law,   she  cannot  be  heard  to  predicate 
good  faith  tl:sreon,  and  recover  according  to   the  measure  of  the  ri^'hts 
of  a  lawful  v/ife.     Second,      If  the  first  contention  is  unsound,    and  she 
may  be  accorded  the  consideration  to  which  (poC  faith  v,ould  entitle  her, 
the  burden  would  nevertheless  rest  upon  her  to  sliov/  by  clear  and  un- 
equivocal proof   t:-£  amount  of  her  earnings  which  vrere  invested  in  the 
property,   thus   establishing  a  resulting  trust  in  her  favor,    and  the 
findings   of  the  comt  affirmatively  chow  th.-^.t  no  guide  can  be  found 
in  the  evidence  by  v/hich  the  amount  can  be  ascertained. 

In  the  earlier  decisions  of  this   state  th2  de  facto  wife  was,  xnoder 
certain  circumstances,   accorded  the  property  rights  of  a  wife,   notwith- 
standing her  kno\'iaedge  of  the  invalidity  of  the  relation.     This  rule  was 
applied  by  reason  of  the  peculiar  warding   of  the  early  laws  governing 
land  donations  from  the  state  on  the  faith  of  occupancy  by  families,  and 
for  other  reasoias   gi-ov/ing  out  of  tie  Spanish  laws  of  marriage.     Babb  v. 
Carroll,  21   Tex,   765;  Lewis  v.  Ames,   44  Te:c.   345;  Yates  v.  Houston,   3 


50. 

Tex,  433.      Ihe  reason  for  the  rule  doec  not  apply  to  cases  such  as  this, 
and  nov/  the  courts  i-ef\i£o  to  a'vard  anythiuj  to  a  pretended  wife,  v/no,  ty 
reason  of  her  tocvledje  of  the   illicit  relation,   occupies   the  position 
of  an  adulteress  and  a  'breaker  of  the  la'vs.     In  such  ca^es  the  courts 
will  leave  tlie  parties  as   they  find  them,   on  tlie   same  principle  that 
they  refuse  to  oafcrce  any  other  c  cnti'act  which  hy  reason  of   its  ohjects, 
or  the  nature  of  the  consideration  upon  which  it  rests,   is  vio'at.rve  of 
law  or  a^ain-^t  public  policy.     If  the  plaintiff  is  in  such  a  position, 
she  can  neither  ho  accorded  the  rijits  of  a  wife;  nor  will  tie  courts 
declare  a,  resultiu^;  trtist   in  her  favor,   or  allow  the  interest  of  a  part- 
ner, however  clear  the  proof  may  he,    if  to  do  no   they  must  hase   the 
judcpneat  upon  the  unla\/ful  contract.     In  tlie  case  at  "bar,   inasmuch  as 
plaintiff  was  never   the  lawful  wife  of  Harry  Laws  on,    fhe  could,  not,    in 
any  event,   bo  entitled  to  the  full  property  rxghts  of  a  vafe,   such  as 
homestead  ri^-hts   in  a  homestead  tie  separate  property  of  the  husbcjad, 
or  a  one- third  life  estate   in  his  separate  realty.     But  if,   in  ^-ood 
faith,   she  has   entered  into  tl:ie  relation,    tl-.e  courts  v;ill  not  refuse  her 
the  just  fruits  of  ^Q  labor  of  her  hands,   and  permit  the  husband,  who 
is  oqua3.1y  giailty,   if   either  is,    to  appropriate  the  pr.rtnerchip  earnings 
to  his  own  use.     That  this  distinction  has  been  recognized  is   clear  from 
the  opinion  in  Ghapmaa  v.  Chapman   (Tex.   Civ.  App.  )  41  S.  "J.  555,   cited 
by  appellant,  v^here  tlae  court  refused  to  award  to  the  putative  wife  the 
full  rights  of  a  wife  in  property  which  was  a  donation  by  the  state  to 
a  husband,    and   to  fha  acquisition  of  v/hich  she  contributed  nothing,   but 
did  give  to  her  a  partnership  interest  in  personal  property  acquired  by 
their  joint  efforts  during  the  existence  of  the  relation.      It  v;ould  seem 
that  such  rjiod.  faith,   whether  resting  in  mistake  of  fact  or  mistake  of 
law,   is  enough  to  authorize  the  courts   to  treat  the  relation  as  a  part- 
nership, upon  proof  that  something  was  actually  contributed  by  each  to 
the  acquisition  of  tie  propei'ty  claimed.     Uhat  featiare,    then,  do  we  find 
in  thjs  case  which  oujit   to  induce   the  courts   to   treat  plaintiff  as  a 
criminal,  a  breaker  of  tlie  laws,  a  willing  party  to  a  contract  involving 
a  shameless  and  debauching  relation  between  the  sexes?     The  record  shov;s 
that  Caroline  and  Alf  Vioods  were  negro  slaves;   that  they  lived  together 
as  husband  and  wife  during  tlB  last  years  of  slavery  vjitli   the  consent 
and  approval  of  their  master.     This  marriage  was  of  no  avail  unless  rati- 
fied after  emancipation.     It  has  been  held  that  a  continuance  of  the  re- 
lation after  emancipation  is  sufficient  evidence  of  ratification,  and 
constitutes  a  common-law  marriage.     The  court  found  that  the   two  did  thus 
live  together  after  emancipation,    thus  furnidilng  tbi  requisite  evidence 
of  ratification,   and  that  this  fact  rcaidered  her  attempted  marriage  with 
Harry  Lawsou  in  1867  a  nullity.     Alf  TJoods,  her  slave  husband,  evidently 
regarded  the  slave  marriage  as  without  binding  farce;   for   in  1667  he 
married  another  in  due   form  of  law,   arc*,  continued  to   live  with  her  as 
his  wife  until  his  death  in  1697, — residing  in  tha  same  neighborhood  as 
the  parties   to  this  suit.     So  lived  Cai-oline  and  Harry,   joining  the  same 
church,  attending  it  togethar  as  husband  and  wife,  recognized  as  such  by 
their  neighbors,   and  evincing  ever^;-  evidence  of  their  firm  "belief  in  the 
■  legality  of  their  relation.     They  v/ere  of  middla  age  at  the  date  of   their 
emancipation,  and  were  clothed  with  freedom  and   throva  upon  their  own 
responsibility,  doubtless  with  but  vagiie  notions  of  the  lav/s  in  general, 
aiid  a  dense  ignorance  of  the  laws  of  marriage.     Indeed,    it  may  be  truly 
said  that  at  that   time  our   coiurts  had  announced  no  clear  views  upon  the 
subject  of  slave  marriages.     It  was  a  problem  yet  to  be  worked  out,  and. 


52. 

for  years  thoroaftor  many  of  the   questions  t^^rowing  out  of  t2ie  relation 
remained  unsettled.     See  Cu-Tiby  v.  Henderson,   6  Tex.  Civ.  App.   521,  25 
S.  Yf.  673.      lliis  bein:;  true,   tlie  riG;htE  of  the  putctive  r;ife  as  to 
property  thus  acquired  have  appealed  strongly  to   the  courts;    and  many 
cases  mijht  be  cited,   not  involving;  the  exact  question,  which  contain 
dicta  clQarly  ino-icatin^  the   tendency  of  the  courts   toward  the  now  es- 
tahlished  doctrine.     To  deny  her  anjr  interest  lias  appeared  so  manifestly 
wrong  that  the   courts  have  not  heen  slow  to  discover  and  apply  princi- 
ples of  law  under  v/hich  she  mi^'ht  Tae  consistently  protected.      2he  almost 
-perfect  analog  hetv/eon  the  marital  relation  in  Texas  and  an  ordinary 
partnership  fumislied  an  easy  solution  of  the  difficulty,   so  that  now, 
"When  it  is  once  ascertained  tliat  tha  relation  is  not  tainted  \;ith  con- 
scious guilt,    the  courts  ccja  proceed  with  small  difficulty,   ond  adjust 
the  property  rights  according  to  legal  principles  which  are  nev;  only  in 
the  sense  that  ttey  have  found  a  new  application.     In  Morgan  v.  I'organ, 
1  Tea:.   Civ.  App.  315,  21  S.  T?.  154,  Justice  Head,    in  his  discussion  of 
the  principles  tmder  which  the  putative  v;ife,  acting  in  good  failh, 
might  have  her  just  rights  secured  to  her,  entered  into  a  thorough  re- 
view of  the  authorities,  and  held  that  the  tendency  of  our  courts,  as 
evideaced  by  the  decisions  involving  kindred  questions,   justified  the 
conclusion  that  she  should  be  treated  as  a  partner  as  to  all  property 
shov^n  to  have  been  acquired  by  their  joint  efforts.     In  inquiring  into 
the  natui-e  of  the  pcrtnersliip,  he  loolced  to  the  contract  by  •vhich  the 
parties  midertook  to  form  the  relation  oi  husband  and  v.ife,  aad  pursued 
a  line  of  reasoniag  -.hich  strongl3r  commends  itself  to  our  judgment. 
Tlie  contract  vhich  the  parties  intended  to  make  v^ould,   if   they  he/,  the 
legal  riglit   to  Lialra   it,  have  formed  the  marital  pcrtaei-shi.^  -.hich  \vOuld 
have  entitled  each  to  a  half  interest  in  all  property  acquired  by  their 
joint  efforts,  without  reference   to   the  proportion  contributed  by  each. 
Such  is   the  meaning  of  the  contract  they  intended  to  rrake.       How,    then, 
can  it  be  justly  held   tl:a,t  the  property  thus  acquired  should  belong  to 
one  any  more  than  to  the  other?     The  parties  having  placed  themselves 
in  an  attitude  to  have  the  contract  looked  to  in  measuring  their  rights, 
there  appears  to  us  no  reason    -hy  the  nature  of  the  agroeracnt  should  not 
be  made   tlie  tost  of  the  nature  of  the  partnership.     In  this  vievj  of   the 
case,    the  plaintiff  • -Quid  not  be  held  to  the  strict  proof  required  in 
establishing  a  resulting  trust  in  property,    the  title   to  vhidli  had  been 
taken  in  another's  nao^e.     In  tliis  case  the  requirement  is  satisfied  by 
full  proof  of  the  nature  of   the  contract  mat?-e,    aad  that  the  property  \as 
acquired  by  their  joint  efforts  dui-ing  the  continuance  of   the  partner- 
sMp  relation.     The  rights  of   tlie  parties  being  fi::ed  by  the  contract 
of  partnership,   it  v.ould  devolve  upon  neither  to  trace   the  funds  into 
the  property,    and  sho'.  the  exact  araonnt  invested.     It  is  enough  to 
sho\.',   as  in  this  case,    that   tlie  parties  v.-ere   each  ■.ithout  means  at   the 
inception  of    the  relation,    snd  tlaat  gradually,  as  a  result  of  their 
joint   efforts,   the  property  sought   to  be  partitioned  liad  been  acquired, 

■.hat  has  been  said  disposes  of  both  objections  set  out  above,   and 
the  opinion  in  Morgan  v.  Ilorgan,    supra,   renders  it  unnecessary  to  further 
review  the  authorities.     The  case  of  Harris  v.  Kobbs    (Tex.   Civ.  App.) 
54  S .  ".".   1005,  gre- •  out  of   illicit  relations  bet\  een  a  white  man  and 
a  negro  v-oman,   and  is  not   in  point  upon  either  proposition.     Chapman 
V.  Chapman,    supra,  '..hile  containing  e::pressions  v.^ich  indicate  that 


60. 

the  i-ishts  here  couteaded  for  could  not  "bo  supported  "by  good  faith  rest- 
ing in  a  mista!:o   of  lav:,  after  all  v;ent  no  fta-ther  than  to  hold  that 
under  the  facts  of  that  case   t"rJ3  putative  wife  ovned  no  interest  in  the 
real  estate,  to  tlB  acqul;iition  of  xjlilch  sic  Imd  contributed  uothiEg. 
The  fact  tliat  the  luitative  -.vife  was   therein  treated  as  an  equal  part'oor 
in  porsoaal  property  acq^iired  by  tlieir  joint  efforts  gives  the  case  a 
certain  val.ue  in  support  of  th3  propositions  vre  Iiave  announced.     RouLh  v. 
Routh,   57  Tex.   600,    is  reviev/ed  aad  distinguished  in  Ilorsan's     Case,   supra, 
(     The  o"bjections  discussed  are  untenable. 

By  tlcB   seventh  assi^joment,  appellant  assails,  as  unsupported  "by  the 
evidence,    the  finding  of  tbD  court  thut  the  property  was  acquired  by  the 
joint  efforts  of  plaintiff  aixL  Harry  Lav;son.    As  we  loave  seen,  the  evi- 
dence  is  anple   to  she-;  that  the  property  was  acquired  v/hile   the  parties 
were  living  together  as  husband  and  wife.     TbB   record  does  disclose,   how- 
ever, a  serious  conflict  as   to  \/hether  Harry  paid  Carolire  wage-^-,  as  he 
did   other  laborers;  but  there   is  ample  evidence  that  te  collected  her 
v/agos  when  she  \,orked  for  others,  and  \.e   tliinic,    on  the  whole,    the  judg- 
ment shouM  not  be  disturbed  upon  tliis    issue. 

Ihe  court  did  not  err  in  holding  that  Harry  Lawson's  conveyance  to 
his  vri.fe  Virginia  and  her  cMldren  was  without  consideration.     It  v/as  not 
'    an  antenuptial  settlement,  but  a  gift,   and   the  motive  was  to  put  the 
property  out  of  the  roach  of  possible  claimants  against  him. 

!rhe  qvjsstion  of  limitation  is  a  serious   one.     Harry  Lawson  ceased 
to  treat  Carolino  as  his  \n.-£o  in  1888,   and  thereafter  lived  in  adultery 
with  his  present  v.lfe  ani   others.     He  did  not,  however,   cease  to  provide 
for  Caroline;  but  gave  her  a  house  on  the  larsi   in  controverJ^y,   in  which 
she  continued  to   live,   subsisting  out  of  the  cocimon  fund.     Tf  she  still 
regarded  him  as  her  husband,  his  acts  anounted,  from  her  standpoint,   to 
no  more  than  cruelty  and  disloyalty  on  the  part  of  the  husband;  and  she 
testifies  she   took  no  legal  steps  fa-  the  protection  of  hor  rights  be- 
cause sbe  hoped  he  v/ouia  return  to  his  allegian.ce  to  her.  \Ie  should  also 
bear  in  mind  that  he  did  not  repudiate  hor  claim  to   the  property,  but 
continued  to  permit  her  to  enjoy  a  joint    possession  with  him.     Cn  Cctober 
21,   1895,  Harry  Lawson  co?j.veyed  to  J.  R.   Penn  the   land  in  cont??ov?rsy  for 
a  recited  consideration  of  03,500.     On  June  11,   1898,   the   land  wai;  re- 
conveyed  by  Penn  to  Lawson;    tiie  consideration  recited  beirig  the  same. 
3!he  evidence  does  not  sho-;;  that  possession  -v/as  surrendered  to  Fenn. 
Appellant   insists  that  the  deed  to  Fenn  was  a  repudiation  of  tli©  rights 
of  Caroline,  but,    in  our  jiaign^ent,   this  by  no  means  follows  as  an  in- 
evitable corclusion.     If  she  believed  him  lier  husband,  te  was  acting  with- 
in his  rights  as  such.     If  he  was  not,   tire  contract  of  partnership,  prop- 
erly construed,   gave  him  the  right   to  convey  and  receive  the  considera- 
tion fa-   tlt>ir  joint  benefit.     Of  the  O^^SCO  promised  him  by  Ferji,  §200 
only  was  paid;   end   it  was  agreed  that,  when  tie  O^OO  -as  paid  br.cl:,   there 
should  bo  a  reconveyance.     The  conveyance  back  in  1898  was  a  coijp?.iance 
vath  this  agreement.     Viewed  in  this   light,  v;e  do  not  think  those  con- 
veyances set  the   statute  in  motion  as  against  Caroline. 

It  is  contended,    also,   that  her  ri^ht   to  the  personalty  is  barred. 
The  testimony  does  not  disclose  any  distinct  repudiation  of  her  rights  on 


a 


J^ 


c:3f-»-t>f    ^  .^,.e*fc-**»^,,.^^»^-«-«*^L.<^/!^**-^^ 


'^..^ 


.^^.^ 


..^ 


.^^.i::;^^^**-^/*^^^'^;^*--^:^^ 


61. 


the  part  of  Harry,   ard.  iiis  possession  until  sucli  repudiation  \ras  not  nec^ 
essarily  adverse.     U^on  his  irarricso  \dth  Vircinia,   cnC  hie  conveyance   to 
her  ariJ.  her  c'.iildren,   the  suit  v/as  promptly  hroijght ,   ani  v.e  think,  under 
all  the  circiimstances,    in  ample  time  to  preserve  her  rights  against  the 
har  of  limitation. 

Appellee  has  cross-assigned  errors,  tut  they  affect  itainly  the  ques- 
tion of  her  ri{jht  to  divorce,  cuid,  as  Harry  Lavjson  is  not  a  party  to  this 
appeal,    they  do  not  require  our  notice. 

Because  v/o  have  fourd  no  error   in  the   juc.grrent    it    is   in  all   things 
affirmed.     Affirmed. 


P~o    \— 


\. 


-<P     y     dT      /> 


'  /> 


BARKLSY  V.  DUUKE     et  al. 

(99  Te::.   150) 
L-^  (Supreme  Court  oi"   Jexa-s.     June  15,   1905.) 

liarriage — Imped ia-jsut:;-  Prior  ii:iEtin,:i-  Llarriase — 
Ilffect  au   to  Innoceat  Party — 
Propert37  Hislits. 

Error  to  Court  of   Civil  Appeals  of  Second  SupreiEe  Judicial  District. 

Action.  iDy  11.  A.  Burnlce  :.jjd  aiother  against  Lou  II.  Bax'lcLey.     From  a 
judgment   of  the  Court  of  Civil  Appealc  afiirmiiii'  a  judj-ieut  for  plaintiff e 
defendant  "brinc^'S  error.     Reversed  cud  rendered. 

GkluEi,,  C.J.     rnis   suit  \ias  brouc^Iit  "by  defgndaat-in^.srrQiLt,,.!^^* 
II.  A.  I)uinl£Q.,_lQiAec:_ba'--he-r-lmsl?^.ad,-ti3liiecover-  of  _  tie^  ^-laintif  f  in.- erxDr 
a  certain  parcel  oi  land  situated  in  tlie  city  of_J"t.  ■..'orth.     She  re- 
covered a  judgment,  -./liich  v/as  ailiinied  by  the  Court  of  Civil  Appeals. 

There  is  practically  no  ditpute  as   to    tlie  facts  of  the  case.      .e 
■^.^ill   state  cuch  of   thera  as    ./e  deera  ,jiaterir,l  to  a  detemiiiation  of   the 
controversy.     In  January,   1896,  lirs.  Duinte,  then  Miss  Hardecty,  and  only 
15  y.aars  of  aje,  •  "as,  -Jitl.  the  consent  of  hBv  father,  regularly  married_ 
to  one  J.  r/7  './oo'dy  who  had" "been  previously  married,_ond  -.Jhose  \;ife  at  the 
Yirno  vas  livin^^and  undivorced.     Miss  Hardecty  did  not   then  la:o-.'  that  lie_ 
_wac  a  Married  rjan,    aad  -./as   therefore  innocent  of   any  -.vron-^c  in  entering— 
into   the  ira-rriase^Telation  v;ith  him.      On  ilarch  51,   1696,    u'ood  and  the 
defendant   in  error,    as  hus'oand  anO-  wife,   e::ecuted  to  plaintiff  in  error_ 
adeed^purportinj  to  cuuvoy  to  hin  tlie  property,  in  controversy  y  -^vhich 
v?as  duly  si^-neu  and  aclmov/led^ed  as  required  hy  our  statutes  for  the 
conveyance  of  tlja  property  of  married  women. __  The  consideration  v.'as  in 
part  paid  at  the  time  of   tjie  transaction,  and  tlie  deferred  payments  were 
thereafter  discharged.     No  part  of   the  consideration  or  its  proceeds  cane 
to   tlie  hands  oi'  LIrs  Dunils.     Tlie  plaint  if  x'  in  error  at  the  tine   of  the^ 
ixaasaction /believed  that   slie  -/as   the  lawful  "WlTe'of  ".ood.     Heither  had 
^he  defend::nt  in  error  u^:    to  this  time  discovered  the  tl'aud  v/hi^JThac!' 
"been  pr?.cticed  upon  her  "by  hor  s'i.pp<5--'^d  hiisiaraLr=~Ir!-Kovemb«r— of-t-he-sasne 
year  t]:e  dpfcudant  ixi  error,   no\/  I.Irs.  DujuIe, -brought _ suit  a^ainEt  T7ood, 

^g,nd  obtained  a  decree  annulling-  tlie  maaxia-^e .     She  subseruently^raairl't^d 

her  present  husband. 

i^erhaps,  under  the  strict  rules  of  ccnmon  lav/,  we  should  be  con- 
strained to  rule  tliat  the  raarria^^e  of  defendant  in  error   with  ".Vood  was 
absolutely  void   to    all  intents  and  puri^oses,   and   therefore  to  hold  tl'£ 
convoy£ince  from  "ood  and  t.e  putative  wife  a.lE0  void.     But  we  are  of  the 
opinion  that  tie  common-law  rule  does  not  apply  to  tliis  case.     C!he  title 
of  the  act  of  January  20,   1840,   entitled  "An  act   to  adopt   the  comrion  law 
of  En3;laad,   to  repeal  certain  Hexicaii  laws,  and  to  re^T-'Jate  the  marital 
i-i^hts  of  parties,"  indicates  that  the  ri^-hts   of  married  persons  "were  to 
be  defined  by  statute,    ;3i  not    to  be  ;joverned  hy  the  rules   of   the  common 


63, 

law.     The  provisions   of  tixe  act  with  refore^xo  to  married  persons  are  so 
incousicteut   with  tiic  rviles  of  the  conmoii  lav/  as   to  show  an  i:itei±iou  to 
maiiitaiii  in  reference  to  marital  ri^iitc  a  radically  different  system. 
The  fact  that  these  provisions  vrere  incorporated  in  the  act  which  adopt- 
(    ed  the  common  law  is   of   itself   significant  of   the  purposo  of  the  Lesis- 
latijrQ  not  to  apply  the  rules  of  tic  common  law  as  to  the  property 
ri£;hts  of  husbaiad  aiid  wife.      In  this   connection  it  is  notable  also  that 
the   statutory  rules  v/hich  v/ore  adopted  are  talien  in  the  main  from  the 
Spanish  lav;,  v/lich   then  prevailed  in   Ihe  republic.     So  strilciiis  is  this 
fact  as  to  justify  Cliief  Justice  Hemphill  in  saying,    in  Bxirr  v.  V/ilson, 
18  Tex.  370.     "Our  laws  on  marital  ri^ts  are  in  substance  hut  a  contin- 
uation of  tlTO  lules  of  Spaiaich  jurisprudence  on  the  same  subject-matter"; 
and  a^-ain,   in  Bradshaw  v,  Hayfield,   18  Tex.  29:     "But  the  common  law  is 
not,   a:id  never  has  been,   of  force  in  this  state   on  tho  subject   of  mari- 
tal rights."     The  rule  of  tlB  Spanish  law  witli  reference  to  such  mar- 
ria^E  as  that  v/hich  took  place  between  Wood  aifi  Iliss  Hardesty  is  thus 
eirpressed  by  the  same  emi:ient   judge   in  Lee  v.  Smith,   18   Tex.  142:      "In 
Spanish  law,    sich  marriage  is  designated  as  putative,   and  th3  consort 
vho  enters  into  such  matrimony  ignorant   that  her  parti:ier  has  a  vdfe   or 
husband  living  is  in  lav/  not  only  innocent   of  crime,  but  has  all  the 
rights,   incidents,   a;:d.  privileges  pertaining  to  lawful  marriage,   and 
these  are  continued  as  long  as   there  ic   ignoraiue  of  tho  former,   or  of 
impediment   to  the  second  marriage.      This  putative  vas  converted  into  a 
real  iiaarriage  after  tho  removal  of  the   impediment  by  the   divorce   obtain- 
ed at  the  instance  of   the  first  v/ife" — and  is  well  established  by  prior 
aiid  cubseq^uent  decisions  of  this  court,  at  least   in  so  far  as  it  recog- 
nizes  tte  right  of  the  imiocc:*  vdfe  to     one-half  of  the  property  ac- 
quired by  either  of  tte  supposed  spouses  during  the  existence  of  the 
putative  marriage.     Smith  v.  Smith,    1  Tex.   621,  46  Am.  Dec.   121;   Carroll 
v.  Carroll,    20  Tex.    731;   Lee  v.  Smith,   18  Tex.  142.      The  rule,  however, 
as  applied  to  persons  vAio  have  married  in  this  state  or  liave  immigrated 
to  the  state  since  the  passage  of  the  act  of  January  20,   1840,  has  never, 
so  far  as  wo  are  av/are,   been  aiinounced  in  any  opinion  of    this  court.      In 
Houth  V.  Routh,   57  Tex.  589,   in  which  the  opinion  v/as  by  the  Commission 
of  Appeals,   tlE  question,   as  we  understand  it,   v/as  eacpressly  left  open, 
thou^i,   iii  an  individual  opinion,   Judge  Bonner  announces  his  conclusion 
to  be  that    Bie   i:niocent  putative  v/ife  v/as  entitled  to   one-half  of  the 
property  acquired  during  the  continuance   of  tTre  supposed  marriage.     In 
Ilorgaii  v.  Ilorjan,   1  lex.  Civ.  App.   315,   21  E.  ':.   154,    tho  Court  of  Civil 
Appeals   of  the  Second  District,    in  an  able   opinion  by  Judge  Head,  azi- 
nounce  the  same  doctrine,  but  that  case  never  came  to  this  cotnrt.     So 
in  La\/Eon  v.  Lav/son,   30   Tex.   Civ.  App.  43,    60  S.  H.   246,   tho  Court  of 
Civil  Appeals  of  the  Fii-st  District     follov/  the  rule  annou:iced  in  Mor- 
gan V.  Ilorgan.     The   opinion  there  delivered  was  by  Judge   (Jill,   and  ably 
sustains  the   dtxjtrino.      In  that  case  a  writ  of  error  v/as  applied  for, 
and  vifas  refused  by  tMs  court. 

Therefore  v/e  think  it  should  be  tal<Bn  as   tlie_j;ettl3d  doctrine  in 
this  state  that,    in  case  of  a  marrjago  of  the  charac t eri  of  that__in-COa- 
troversy,   the  putative  v/ife,   so  long  as  she   acts  iniaocently,  has,   as  t^o 
tie  (property  acfuired^durir.;:  that  time^P  the  rights  of  a  lavJful  v/ife.     If 
aE~aHc  facto  vdfe  she  have  the  rights   of  a  lav/ful  spouse,  we  fiii:--k  it 
fo^lo^/s  as  a  necessary  corollary'   that  eIb  has  corresponding  obligations, 
and  that  her  status  becomes   tliat  of  a  lav/ful  married  v/oma:x.     Since,   u:ider 


64, 

our  statutes,    Gig  raarria^'O  of  an  infc-it  female  rei.ioves  laer  disability  of 
minority,  \ie  are  of  the  opinion  that  tipon  the  maiTiage  of  tha  defendant 
in  error  -i-lth  ./ood,   in  ignorance  of  tlie  fact  that  he  was  then  a  married 
man,  she  'becaj'ae  empov/ered,  "ith  the  consent  of  her  supposed  husbtrnd,   to 
convey  iier  separate  property,     ilie  conveyance  in  c^uestion  having  heen 
e::ecuted  by  tlue  supposed  hustand  and  v;ife  in  confa'mity  to  all    the  re- 
quisites  of  our  statutes  for    tiie  conve^'ance  oi    flj.e  propert3r  of  married 
women,  we  conclude    chat  it  passed  the  absolute   title  to  t'.-J2.  land  in  con- 
troversy^ to  the  plaintiff  in  erxor.     "./e  would  not  Tae  understood,  as 
saying  that  tha  rules  oi   tlie  cou-iiion  lav/  as  to  husband  aiic-    /ifo  apply  in 
no  case  under  our  system.      Tliey  have  "been  irocuantly  apx^lied  in  divers 
instajicGs  in  t".i3  decisions  of  our  courts.     \Iha.t  'e  do  hold  is  that  tlie 
coaunon  law,   as   to  the  consec^uence^  of  a  void,  marriage,  does  not  apply 
in  this  case. 


2lhe  judgment  of  the  Coru  t  of  Civil  Appeals  and  that  of  V.b  district 
court  are  reversed,   and  judgment  is  hex-e  rendered,  for  tlia  plaintiff  iu 


-h- 


,^«-*<::>    ^    i5=-c? 


65. 


/ 


J 


UIDDLSTOn  et   al.   v.   jaiHSOI?.    p\, 

(110  £.  XL   789) 
(Court   o£   Civil  Appeals  of  Te::as.     Llay  7,   1908) 

Appeal  from  Discrict  Co^r.t,  Ilari-isoii  Co'Lint-/;  R.  :.     Levy,   Jucse. 

Trespass  to  tiv  title  "by  I.  A.   Jolmstoii  against  Irene  Iliddleto.--.  s;vi 
others.     Fro^i  a  judgment  far  pi  a  intiffT^Se  fondants  appeal^     ^Iffiiraed- 

"./ILKCn,   G     J.     Bie  suit  was  "brought  "by  appellee  Jolpston  a^-ain£_t 
Irene  Middleton  and  Joe~lj'ields  to  try  the  title   to  40  acres  of  laiid,  a 
"piST^rTheTLrLT^JoodE  ^survey /situated  in  Kcd-'ison  county.      'Sie  peti- 
tion v/as   in  the   statutory  form.     Fields  ans\7er^. di§.oI_aiming_  titl_e. 

Irene  liiddleton' s  ancv/er  was  a  plea  of  not  guilty.     Sie  trial  v/as  TDefore 
the  court,  v/ithout  a  jury,   and  resulted  in  a  judgment  in  favor  of  John- 
ston.    Ei8  conclusions   of  the   trial  court  vsre  not  reduced  to  \vriting 
and  iBade  a  part  of  tlie  record  on  tliis   appeal. 

It  v/as  agreed  that  Kirk  Cory  aid  Ms  v/ife  v/ere  the  common  source 
of  title.     By  a  deed  dated  October  11,   189S,   and  recorded  on  the  same 
day,   for   a  consideration  of  $540  therein  recited  to  have  been  paid  to 
them,  tliey  conveyed  the    land  to  ICaleigla  lliddleton,  v/ho  by  his  deed 
dated  February  11,   1905,   for  a  consideration  of  $293  therein  recited 
to  have  been  paid  to  him,   conveyed  same  to  appellee.     Sia  evicence  es- 
tablished that  Ilalei^li  lliddleton  and  Ophelia  Ililler,   negroes,   r^rere  mar- 
ried in  1872,   and  thct   legally  tie   relation  of  husband  and  wife  con- 
tinued to  exist  between  them  until  the  death  of  Ealeigh  in  1906.      ThQ 
claim  of  title  asserted  by  appellant  Irene  Lliddleton  rested  upon  her 
contention  (1)  that  the  purchase  price  of  the  land  v/as  paid  ior  by  her 
ani  that  Raleigh  held  the    title    in  trust  for  her-,   and    (2)   that,    if  tiis 
was  not   true,    the    title  vac  acquired  by  Raleigh  at  a  time  \lien  sie   in 
good  faith  believed  she  was  his  wife  an3.  v.as  paid  for  v/ith  mon^"  earned 
by  tiiem   v/hile  she   so  believed,   as   the  result   of   tlieir   joint  efforts  as 
husband  and  wife.     Eiese  caitentions   were  based  upon  evidence  that  ste 
liad  iTiarried  Raleigh  in  1883  believing  he  had  obtained  a  divorce  from 
Ophelia,   and  upon  evidence  that,  while  they  were  living  tcgetler  as  man 
and  v/ife,    fcejr  had  pui: chased  the  land,  payii^g  for  it  v/ith  money  earned 
(e::cegt  a  small     portion  thereof)  by  her,   and.,   after  purchasing   it,  had 
majde  it   their  home.     Th.o  evidence  tended  to  establish  tliat  Irene  and 
Raleigh  v/e:e  mai-risd  in  1882  ca:  1883,   and  that  dizring  a  number   of  years 
thereaf terv/ai*ds  they   lived  together  as  man  and  v/ife,   and  v;ere  so  living 
together  at   tiie  tiv.-B  the   land  in  controversy  v/as  conveyed  to  Raleighr 
The  evidence  was   conflicting  as  to  v/hethe-    IreiE  at  the  time  sl:e  mar- 
ried Raleigli  in  good  faith  believed  he  ".lad  been  divorced  from  Ophelia, 
and  it  also  v/as  conflicti.:g  as   to  xAxethe-i   she    iii  good  f  o-ith 'bel  ieved 
she  v/as  Rcaeigh'c  lai/ful  -.afe  at   the  time   tlie  land  v/as  purchased  and 
conveyed  to  him. 

Me  do  not    thinh   tlio  contention  made,   that,   as   the  putative  wife  of 
Raleigh,    Irene  had  acquired  homestead,  rights  in  the  land,   c?n  be  sus- 


66. 

tained.     Without  roLpect  to  xh^'chor  she   in  good  faith  married  him,   be- 
lieving he  had  been  divorced  from  Qphclia  or  not,    it  must  be  said  that 
her  marriage  to  hiin  v;ac  void,  and  that  at   the   tiire   the  title   to  the 
land  wac  acquired  sh3  v/ac   living  v;ith  hin  as  hie  wife  ia  violation  of 
law.     Ae  was  raid  in  Lane  v.  Philips,   69  Te:c,   241,  6  £.  TT-  610,   5  Am. 
£t.  Rep.   41:      "It  never  was   intended  tliat  persons   so  associated  and  liv- 
ing together  in  plain  violation  of   lav/  should  be  deened  a  fanily,  ^■Alich 
it   is   the  purpose  of  the  homestead  exemption  to  protect.     To  constitute 
a  family,  vatliin  Eie  meauiig  of  the  lav/  givirg  the  homestead  o::emption, 
the  irersoiE  \/ho  dwell   together  must  not  in  the  fact  of  so  doing  be  vio- 
lators of  the   law  of  the    land,"     A  homestead  is  not  an  estate   in  land, 
but  a  mere  e::emption  or  right  personal  to  the  parties  in  whose  favor  it 
exists.      'EhomaE\.  Fulford,   117  U-    C    667,    23  S ,   E-.    635t   Sllinger  v. 
Thomas,    64  Ifen.   180,   67  Pac.   529.     Its  e::istoncc  depends  upon  the  exis- 
tence of  the  concUtiouE  defined  by  the  Constitution  and  laws.      Ihere 
must  be  a  family,   otherv/ice   there  can  be  no  homestead  within  the  meaning 
of  the   Constitution?   aixL  the   fa:uily  must  be  one  v^iich  e::istSi   not  in 
violation  of,  but  by  authority  of,   the    law.     Tlierefore   it  must  be  held 
that  the   conveyance  made  by  Raleigh  ol'   the   land  to  appellee  was  not  void, 
because   Irene  did  not   as  his  wife  join  him  in  its  execution.     If  she  had 
rights   in  the  land  entitled  to  protection  as   against  Raleigh's  deed, 
some   othEr  basis  for  them  than  the  law  defining  the  wife's  rights  as  to 
the  homestead  must  be  found.      In  BarUey  v.  Hva-nke,   87  £.  v:,  1147,   the 
Supreme   Court  declared  it   to  be  the  settled  doctrire   in  this   state  that 
the  putative  wife  so   long  as  she  acts   innocently  lias,   as   to   the  property 
acquired  by  her  and  her  supposed  husband  during  the   time  she  so  acts, 
the  rights  of  a  lawful  wife.     The  rule   seems   to  have  for   its  support 
the  principles  controlling  in  determining  the  rights   of  copartners; 
their  relationship  and  that  of  husband  and  wife,  under  the  law  in  force 
in  this  state,   being  regarded  as  analogous.      It  was  applied  in  Morgan 
v.  Horgan,    1  Tex.   Civ.   App.  315,    21  S,  ".:.   154,    and  Lav/son  v.   Lawson,   50 
Tex.  Civ.  App.  45,   69  S ,  Vi",   246,   vftiere  the  reasons  for  it  v;ere  clearly 
stated.     Before   it  can  be  held  to  apply,    it  must  appear  that  the  person 
invoicing  its  application  for  her  protection  during  the  time  the  property 
was  being  acquired  in  good  faith  believed  ciie  was  the   lawful  v/ife.     Tlie 
judgment  in  f  aver  of  appellee  involves  a  finding  by  the  court  below 
that  Irene  did  not   in  good  faith  believe  she  had  been  lav/fully  mai-ried 
to  Raleigh,   and  did  not   in  good  faith  believe   she  v;as  lavtfully  his  wife 
at  the  time  and  before  the  title  to   the  property  in  controversy  was  ac- 
quired.    Eiere  v/as  evidence  that  Irene  lived  in  llarshall  in  1878,   and 
taiew  that  Raleigii  and   Ophelia  were   then  husband  and  wife;    that  in  1878 
Raleigh  deserted  his  v/ife,   and,  v.ltl-x   Irene,    left  Marshall,   going,    it 
seems,   to  Sherman,  vhere   tlie3'"  claimed  to  have  been  married  in  1882  or 
1865;   tl-£.t  Irene  returned  to  Ilarshall  prior  to  1885  anf.  ..larried  one 
Doc  Campbell,   vath  v.hom  slio  lived  as  his  vafe  until  1866,  when,  Raleigh 
having  returned  to  Ilarshall,  she   abandoned  Campbell  and  began  again  to 
live  \d.th  Ralcigli  as  his  wife.;    and  that,   after  the   land  v/as  conveyed  to 
Raleigh   in  1895,  she  made   trips  from  Harshall  to  Terrell  arA  to  Dallas, 
airi  while  at  those  places  lived  in  af-ulteiy   vith  other  men.     Cti  the 
other  hand,    there  was  evidence  tliat  in  1878  Ralefeh  instituted  a  suit 
in  the  district  court   of  Harrison  county  against  his  v/ife  fa-  a  divorce; 
that  in  1882  or   1863  he    stated  to    Irene  that  he  had  hoea  divorced,   and 
e:iliibited  to  "jier  a  paper  vhich  lie    said  v/as  evidence  of  the  fact;    that 


^7. 

6he  could  neither  reaxl  nor  write,   aM   thoroiapon  agreod  to  and  &^^  marry 
hifflf   that  sh3    returned   to  Marshall,   and   thqre  declared  to  CjpJielia  that 
6he   asd  Raleigh  had  been  married;   that  from  ia86  until  later  than  1893 
she   and  Raleigh  lived  together  as  aiad  claimed  to  be  man  and  wife;   that 
•while  they  were  so   livii^  Ophelia  married  another  man,  '41^^  vihom  as  his 
wife  she  continued  aftervvards  to  live;  that  Iron»  palA  -Out   of  her  ovnx 
earnings  the  purchase  price  of   the    land   in  controverey,   and  v;ith  Raleigh 
Gjod  their  children  moved  to,   improved,   and   lived  on  same  as  their  home; 
that  in  1901  Raleigh  hrou^t   suit    in  the  district  court  of  Harricoa 
couatj''  against  her  for  a  divorce,  alleging  in  his  petition  that  he  and 
she  had  bean  lawfully  married  in  1882,   and  that   Ihey  had  lived  together 
as  man  and  wife  "until  about   tvAj  years  ago."       In  this  state  of  the   evi- 
dence a  majority  of  the  court  is  of  tiie   opinion  tliat  tlie  findiiag  of  the 
trial  court  cannot  be  said  to  be  without  support,   or  as  against  such  a 
prepoaderaiXie  of   Ihe  evidence  as  would  justify  us  in  setting  his  finding 
aside.     As  supported  by  the  evidence,   therefore,  vre  find  in  acccrdaace 
■with  tie  finding  of  the  court  below  that   Irene  did  not  marry  Raleigh  at 
the  time   in  good  faith  believiug'  she   lavgfully  could  do  So,  and  that  slB 
did  not  vjhile  she  lived  with  him  in  good  faith  believe  she  vtas  his  lav>. 
ful  Tslfe.     Hiis  finding  necessarily  would  residt  in  an  affirmsiaoo  of 
the  judgment  of  the  court  bal»w.     But  we  thialc  there  is  also  another 
ground  upon  which  it  must  be  affirmed.     ISne  judgment  rendered  involves 
a  finding  by  the  trial   court  tJiat  Jobufitoa  acquired  the   legal  title  to 
the  land  as  a  purchaser  thereof  in  good  faith  for  a  valuable  considera- 
tion paid  and  without  notice  of  the  equities,   if  any,   in  favor  of   Iren*. 
©lis  finding,  we  thiajt,  must  be  held  to  be  supported  by  the  record. 
Johnston  testified  that  he  had  heard  that  Raleigh  had  a  wife,   but  did     - 
not  kaow  that   Irene  claimed  to  be  his  v/ife  or  that  she  had  ever  lived 
with  hlra  as  siacfe.     He  paid  Raleigji  0293  for  tlie  land.     Of  the  sura  so 
paid  Ol29  v/ais.  monay  and  the  remaiaing  516*  v/as  paid  by  crediting  an  ac- 
count di»  to  Mm  by  Raleig^i.     "/hile  there  vjas  evidence  tendiug  to  shov/ 
it  to  be  worth  a  great  deal  more;   there  was  also  evidence   tending  to 
show  that  at  the-  tims  Johnston  purchased  it   the  land  was  worth  no  more 
than  frOB.  $200  to  fj.^0.     Iher©  was  als  o  evideiice  that,  wlsn  appellee 
first  endeavored  to  induoe  RaXei^  to  ej;ecute  the  deed,   the  latter  re- 
fused to  do  soj  aesigBing  as  -a.  reason  for  his  refusal  tiiat  he  had  a  wife 
in  the   Indian  Territory  vSm  ->70uld  male  trouble  -iBn  she  found  out  he  had 
done  SO;   that  a  year  later,  -Jlien.  a^ppellee  renewed  his  effort  to  induce 
him  to  e:cecute  the  deei,  he  again  refused,    assigning  the  same  reason; 
Qiat  appellee  then  said   to  him,    'Cigu  it,   and   I  will  run  the  rick";   and 
tJiat  Raleigh  tlien  eicecuted  and  delivered  the   deed.     Qa  behalf   of   Irene, 
counsel  conteaa.  tl;at   Uiis  was   sufficient  to  put  appellee  upon  inquiry, 
and  that  lie  v;ould  be  c5iargeable  with  notice  of  sich  facts  as  he  vrould 
have  ascertained  by  such  inquiry.      Jt  may  be  conceded  that  this   is   true, 
but  it  does  not  follow  that  ^pellpe,   therefore,  should  be  held  to  have 
had  notice  of  the  equities  in  favor  of  Irene.     1!hQ  matter  about  vhich  he 
diould  be  held  to  liave  been  put  upon  inquiry  was  Raleigh's  assertion  that 
he  was  a  married  man.     Johnston,   perhaps,    should  be  held  to   such  icaov/- 
ledge  of  tins  truth  about  tiiis  as  would  have  been  ascertained  by  inquiry; 
that  is,    that  Raleigh  was  a  married  man,   and  that  Cgihelia  was  his   \7if6. 
If  Ophelia,   instead  dt  Jrece ,   was  making  tl-s  contention  here  made  for 
Irene,   it  would  be  held  that  Johnston  toolc  the  title   diarged  v/ith  notice 
of  Ophelia's  rights  as  Raleigh's  lawful  wife;  but   information  conveyed  to 


SB. 


appellee  that  'Raleigh  had  a  v/jf  e  did  not   put   the    ibimer  apon  inqnirj-  to 
ascertain  v/hc  the  r   oi-  uot   the   lo.ttor  '.'ad  be  on  liviug  with   Irene    as  his 
v;ifo  aud  that  v;hile  t:-jey  v/ere  so   living  she  had  acquired  equities  in 
th5  land.     SanlDom  v.  Schuler,   86  Tex.   116,   23  £.  ■..".   641;  V/ettered's 
Adin'r  v.   Boon,    17  'i'e::.   14G;  F.ailway  Co.  v.    C-ill,   66  Tex.   284,    24  S.  U. 
502;   21  A.  A  Ency.  Law  (2d  Bd.)  p.   537.     The  rule   is   tiat  one  viio  seeks 
to  ingraft  upon  the   legal   titlo  a  secret  equity  must  prove  that  the  pur- 
chacor  of  the    l3gal    titlo  had  notice  of  svch  equity.     Loan  Co.   v.   Tay- 
lor,  86  Tex.   50,   29  S.  '.'.  1057.     V/e  thinlc  the  trial  co-.irt  di3-  not  err  in 
holdi:]g  thet   Irene  had  not  dischai-ged  this  tnarden. 

By  her  fourth  ass  agnraeji   of  erroi-  appelladb   conplains   that    fiie 
judgment  v/as  erroneous,  because,   as  sis  contends,   the  evidence  shDv?ed 
that   thi  conveyance  laade  hy  Raleigh  -.vas  interded  "by  the  parties   tliereto 
to  operate  as  a  mortgage,   and  not  as  a  deed.     This  contention  is  "based 
Ui?on  tr.Q  fact  that  at  tlis   time  Raleigh  executed  the  deed  appellee  exe- 
cuted and  delivered  to  hin  an  instr-urent  reciting  that   the  former  had 
settled  his  account  in  full  hy  conveying  to  the    lattor  the  land  in  con- 
troversy, and  obligating  appellee  to  reconvey  the    land  to  hin  if  Raleigh, 
before   tte   let  day  of  November  follovang  the  date  of  the  deed,  should 
pay  to  him  the  sum  of  0293  and  inter  est  thereon  at  tie  rate  of  10  per 
cent,  per  pjonum.      The.  instniment    and   the  deed  to  Johnston  ftirnish  the 
only  evidence  in  the  record  as  to  the  intent   of  tlx  parties.      It  cannot 
be  said  from  their  recitals  alone  that  they  shov/  tlic^t    fiie  intent  v:as 
that  the  conveyance  should  only  operate  as  a  mortgage.     Goodtai"  <2:  Co.  v. 
Bloom  (Tex.  Civ.  App.)   96  S.  ^'.   657;  Harvey  v.  Edens,   69  Tex.  420,   6 
S.  \T.  306. 


Tnc  judgment    is   affirmed, 
IE.VY,   J.,   not  sitting. 


\~ 


?v. 


o 


^- 


\  ^ 


t-o 


-<^-^— ».n— J 


69. 


FT.  ^:0R2E  u  H.   G..   RY.    GO.   v.   ROBERIEOn  et  al.    j-i, 

(Court  of  Civil  Appeals  of  Terras.     April  17, 
1909.     Reh'^r-rine:  Beuied  May  15,  1909.) 
(103   Tox.   504). 

Dunkiiii,  J.,   disEenting. 

Appeal  from  District  Court,    Tarrant  County;  I!ife  S.  Smth,   Juige. 

ActioaJb;y_Hs.;?.?ie  II.  Eobertson,    as  surviviiigjvVidov;  of  Jolm  P.  Rot- 
ertson,  aud  as  ne:::t  friea(5._for^anie  Roljertson.  a  surviving  child  of 
John  P.  Robertson,, a, -gainst  the~Ft.    ..'ortii~^Jj:io  Grande  Railvreiy  Company. 
Judgment  for  ila?.utiffs,^nu  defendant  appeals.     Affimedi 

SPESR,   J.     liiggie  M.  Robertson  instituted  this  suit  in  behalf  of 
herself,   as  sur'/iving  vddo-'-  of   John  P.  Robertson,  deceased,  and  as  ne:ct 
friend  for  Annie  Bobert-r;on,  a  sicrviriiig  child  of  tiie  said  John  P.  Rob- 
ertson,   to  recca'er  darnap.'cr  for   injijries  received  by  the-said  John  ?,. 
Ecibertson  thi' oiaC-'h  tlic  •aojlii'enca  of  Gig  Ft.   '..orth  di  Rio  Grande  Rail'.vay 
Company,  \7hinh.  injur iec  did  not  result    in  his  death.     There  v.as  a  verB-ict 
aoi  a  jTj^gnEHt   in  favor  of  the  pia:.ntif  f  s  f o  r  the  sun  of  $2,500  each, 
from  \*Lich  the  defendant  has  appealed,  complaining  only  of  that  portion 
of~the  judgment   in  favor  'of  ~Ma^Ie~M .  Roberts  on .  " 

There  is  practicall;'-  no  controversy  in  the  facts  of  this  case,   and 
the  issue  presented  is  purely  one   of  lav/.     llagG'ie  H.  Robertson,  while 
quite  a  young  girl,  v;as  inarried  to  the  deceased,   John  P.  Robertson,    ob- 
serving all  the  EOleranitisE   of  law,  and  the  two  continued  to   live  to- 
gether as  husband  and  v.lfe  until  the  date  of  his   death,  more  than  10 
years  tlareafter.     At  the  time   of  the  attempted  marriage,   John  P.  Rob- 
ertson had  a  living  wife  from  viaon  he  had  never  been  divorced,  but  of 
the  existence  of  this  nai~r iage  appellee  was  ignorant.     At  the  time   of 
her  crai^riage,    and  at  all  tii-iCC  until  the  truth  was  disclosed  on  tlie 
trial  of   this  case,  she  had  no  reason  to  believe   that  her  marriage  vjas 
not   in  all  respects  lawful,   but,   on  the  contrary,    firmly  believed  that 
tlie  same  v/as  regular.     Tliore  is  e\^idence  to  indj.cate  that  the  deceased 
also  entered  into  the  marriage  v/ith  appellee  in  good  faith,   but  as   to 
this  we  e:,g)ress  no  opinion,   since  it    is  vmimportant  in  the  view  ^x  talte 
0£  the  case.     Jolin  I .  Robertson  during  his  life  instituted  suit  ag-ainst 
appellant   to  recover  for  the   injuries  sustained  by  him,  but  died  before 
the  cause  proceeded  to  judgment. 

Th&   issie    of  law  presented   is  very  clearly  stated  in  appellant's 
propositions,   as  foilovi^:      ''First,   Ilaggie  ¥l.  Robertson,  not  being  the 
lawful  v.ifo  of   John  I.  7.6bertson,   deceased,  had.  no   interest  in  an  action 
by  him  far  injuries  done   to  his  person,    and  such  action,  being  b-ought 
by  him  in  his  lifetime,   did  not  sur\'ive  at  his  death  to  plaintiff,  L'aggie 
M.  Robertson,  but   only  siiivived  to  his  heirs  and  legal  representatives. 
Second.     Plaintiff,  M^^'gie  M.  Robertson,  v/as   the  putative  and  not  toE 
lawful  v.lfe  of  John  P .  Robertson,  deceased,   and  as  such  had  no   interest 
in  a  caase  of  action  which    abated  at  his    cleath  e::cept  as  ts  his  heirs 


70. 

and  legal  reprecentatives,  but   only  had  an  interest  in  such  property  as 
they  "by  their  joint  effotts  may  have  acquired  during  the  xonlawful  co- 
habitation,  and  the  action  brou^t  by  deceased  in  April,   1907,  having 
been  abandoned,  plaintiff,  Uaggie  M.  Robertson,  had  no  such  interest  in 
said  cause  of  action  as  v/ould  authorize  her  to  maintain  this  suit." 

.  It  vdll  Ibus  be  seen  that  two  questions  of  lav;  are  involved:     First, 
\-aiether  or  not  I-teggie  M.  Robertson,   as  the  putative  vafe  of  John  P.  Rob- 
ertson,  deceased,  had  an  interest  in  her  o;m  right  in  the  cause  of  action 
against  aprellant  for  personal  injuries  not  resulting  in  the  death  of 
John  P.  Robertson;   and,   secord,   if  not,  then  is  the   said  Maggie  E.  Rob- 
ertson an  heir  or  legal  representative,   lAithin  tlie  meaning  of   our  statute, 
surviving  such  causes  of  action?     It  \;oulc).  be  unprofitable   to  review  the 
many  authorities  and  to  rehearse  the  arguments  leading  up  to  the  conclu- 
sion so  clearly  announced  in  Barkley  v.  Dumke,   99  Te::.  150,   67  £ .  "57- 
1147,   vhereia  ilr.   Chief  Justice  Gaines  uses  the  follomrig  language: 
"Therefore  w©  Clink  it  sliould  be  taken  as  the  settled  doctrine  in  this 
state  that,   in  case  of  a  marriage  of  the  character  of  tliat  in  controversy, 
the  putative  wife,   so  long  as  sle  acts  innocently,  has,   as   to  the  proper- 
ty acquired  during  that  time,   the  rights  of  a  lawful  wife."     See,  also, 
Allen  V.  Allen   (Tex.  Civ.  App. )  105  S.  '.7.   53;  Speer  on  the  Law  of  Iilarried 
\7omen.  Sec.  178.     In  the  Supreme  Court  case  from  v/hich  the  above  quota- 
tion is  tal^n  it  is  very  clearly  pointed  out  that  the  rule  of  the  cormon 
law  MJith  respect  to  such  niarriages  does  not  obtain  in  tLis  state,   and 
the  earlier  cases  of  liorgan  v.  Ilorgan,    1  Te:;.  Civ.   App.   315,   21  S ,  U. 
154,  ard  Lawson  v.  Lav/son,   30  Tex.  Civ.  App.  43,   69  S     \I.  246,   -.iierein 
the  Courts  of  Civil  Appeals  had  recognized  tl-e  property  rights  of  the 
putative  wife,   Vv'ere  e^^pressly  approved.     Appellee,  tlien,  leaving  married 
John  P.  Robertson  in  good  faith,    is  undoubtedly  entitled  to  the  rights 
of  a  lavrfXil  wife  in  the  prciperty  acquired  by  tliem,   or  either  of  them, 
during  their  marriage.      It   is   equally  well  settled  th^t  a  chose  in  action 
accruing  to  either  spouse  during  tie  marriage  by  reason  of  an  injniy  to 
the  person  is  commimity  property.     Ezell  v.  Dodson,   60  Te:c.  331;   T    C. 
Ey.   Co.  V.  Burnett,   61  Te:c.   638;  Speer  on  the  Lav/  of  Harried  Women,  Sec. 
193.     So  it  necessarily  follov;s,  v;e   think,   that  appellee  was  an  equal 
owoer  with  her  husband  in  the  cause  of  action  against  appellant,   and  was 
only  precluded  from  suing  for  the  same  prior  to  his  Heath  by  reason  of 
the  rule  of  law  in  this  state  that  such-  causes  of  action  may  be  main- 
tained only  by  the  husband.     Upon  his  death  t?-e    impediment  was  removed, 
and  she,    like  any  other  litigant,  might  properly  assert  her  legal  ri^its, 
irrespective,  we  think,   of  any  statute  surviving  tie  cause  of  action  as 
tp  the  heirs  and  legal  representatives  of  the  deceased  hurb?iid.        In 
Oder  \v'Qrds,  the  chose  in  action,   being  proL^erty,   -was-  acquired  by  John 
P.   and  iiaggie  1.1.  Robertson  during  tlie  time   they  were  living  togetlier  as 
husband  and  wife,    and,   as  such,  belonged  jointly  to  t>.em,   and  after  his 
death  slie ,   as  such  ovaaer,  was  authorized  to  maintain  a  suit  for   its  re- 
covery, precisely  as    C^.e  smrvivii:g  wife  of   a  perfectly  regular  marriage 
might  sue   to  recover  the  coEsnunity  property.     V.fe  furthermore  thinlc  this 
conclusion  should  be  wholly  uninfluenced  by  any  consideration  of  the 
question  vtieGier  or  not  appellee  actually  contributed  anything  tov;ard 
U\ii  acquisition  of   this  cause  of  action.      If  the  marriage  bet'.'een  appel- 
lee ard  John  P.  Robertson  had  been  regular,   undoubtedly  then  Kie  law 
would  not   inquire  -a&iether  the  wife's  efforts  had  entered  into  the  acqui- 


:.  v.^ ,    ..      :    [■■;-:  ::■.  tiy:-;t:.  :■■:.  J":-   "♦'•■■    .  :';vv;.!-V'.    ■^-■•£'j;..v  It.  i-i:  ..•; 

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;'.'.i'/f.ww.,.:  ■  fo M ''<:•;>    .;.-ii  •'i.:ii>  ii'ifl.i  t.  • '.wJ*'   f.Ci.  ■'  -'i 

A  vC'T-    t>    ;•..,.        ...:,.'    ■;   ';■■■:    ^n    ,.r;oa'T- )•/-";  .:.  -:-.L  .;<n:/     JftU  I;";  'r  >.  :}  ^-i:' 

^':    '  i\  hL^.-:   ■.■■':'"  ^x' ziv: 'h     -'or  ■••'£".  :s.:^>--:    /■  ,r     .  ^■3S'r:''-i^iH  ,'i  ,x;i.-l 

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rc;\-.„    -.••'  c;    ;'tJ  Vii.  .A/^ -.-v  ;                            :     :.      ■•    ..;  .c:Oi':|(Ji^  -^  •■.■■•"■. 

:.;;    .     ■  ..,■•■..;   ..i             ■     :    ..  vi'':i;:..i^  v.:  i::oi3 

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,;■,.:  .             ..■•'.:   .     ;.    -:;. ii.il  iU    ^diX'i   o^iiii^i 

'.•:  ..    ./''     i:-'  .  .        :         :j'  ■':■   ■    .\ii '.  ''>  :'..v  .'iv..Oi;  ^c^ 

;:;  .  :'  *:  .  .-^  -     .■j/  ''i;>  ,v^->ii'A 

.:—  ••:;.:.  ■■:..:■■  :.'.  -:.).. ir  ■  ;  ,  •;VI  ,  ^«  .?  .Jjois^v./ 
:.  :/!-'  J'-.o'xo.^  '/i.  ;;:>■-  V.;-.  ^i  ;^/  jivi'iiSl  :i.}  iiO*" 
,  n     .  oii   :;,o%,  ■         ;.,..(  ;!.xsk;,> 'at; :;  "^;)    •}C;v;-j;'i''j   ".i.^^   -.^mI 

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■  J    ■    ,:-/:r.-.rv.-  .:;.    m,,,  ,    ...    ■.,-    -...i  ,■;  ":' l-::::^ 

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TVjJ     ,.1, 


wi; 


'C.:",?-;-.    ^•i'^•:l:.;.:::^C•"■■,-  c» '.   C- 


.        '    J. 
.     :    ;      :  :  •;.  ^       r;:, 

..'  .     .  ..  'ti"   iXf'   ''■"■■■  '■ 


c,V  •.!  ■.:  .;.   -i    .;'i.'.'    '>.'  '■'.-'! 


71. 

V     citioa  or  not.     If  ths  logic  of  the  decisions  already  rofen^ed   to  is 
sound,   and  we  thin'.c  it  is,   the  la\/  Y;ill  not  inquire  iu  the  present  case 
'./hether  the  acquisition  was  by  the  joint  efforts  of  the  husbani?.  and  wife, 
or  atten"Q?t  to  adjust  their  respective  rights  in  proportion  to  the  amount 
each  contributed  thereto.     Hie  law  will  not  concern  itself  v/ith  such  an 
inquii'v,  but  vdll  leave  the  parties  to  sliare  iu  the  property  in  the  same 
proportion  as   thcrugh  the  marriage  contract  was  -./hat  the  vdfe  had  every 
reason  to  believe  it   to  bo,   i.   e.,   a  valid  marriage.     To  accord  to  r 
appellee  a  rig-ht  to  share  in  the  acquisitions  of  herself  and  Jo]in  P. 
Eobertson  only  in  the  proportion  in  which  her  earnings  or  efforts  entered 
into  the  acquisition  would  be  to  accord  her  the  rights  of  a  stranger,  and 
not  of  a  vafe  at  all.     Such  a  conclusion  would  be  at  variance  with  the 
whole  theory  upon  t/nich  the  decision  of  Barldey  v.  Durake,  and  the  line 
Of  cases  therein  reviev/ed,   is  based. 

\7e  would  further  hold,   if  it  v/ere  necessary  to  a  disposition  of  the 
case  tl;at    the  cause  of  action  survived  to  appellee  under  article  5353a, 
Sayles*  Ann.  Civ.  St.   1697.     That  article  p:iOvides:    ^'Causes  of  action  Ux^- 
on  whld-.  suit  has  been  or  may  hereafter  be  brought  by  the  injured  for 
personal  injuries  other  than  those  resulting  in  do  a  tii,  whether  such  in- 
juries be  in  the  health  or   to  the  reputation  or  to  tho  person  of  the  in- 
jured party,   sh-all  not  abate  b:/  reason  of  his  death,  nor  by  reason  of  tiie 
deatl-  of    e^e  i  erson  against  whOi.i  such  cause  of  action  shall  have  accrued; 
but  in  the  cate  of  tlie  death  of  either  or  both,   such  cause  of  action 
shall  survive  to  and  iu  favor  of  the  heirs  and  legal  representatives  of 
sucili  injured  x-»arty,   and  against   the  person,   receiver,  or  corporation 
liable  for  such  injuries  rnd  his  legal  rei-i-esentatives;   and  so  surviving, 
such  Cause  may  be  thereafter  prosecuted  in  like  manner  and  with  like 
legal  effect  as  v.-ould  a  cause  of  action  for  injuries   to  personal  property.' 
V/e  tliinl:  the  evident  purpose  of  the  Legislature  was  to  abolish  the  common 
law  rule  that  a  cause  of  action  for  personal  injuries  not  resulting  in 
death  should  abate  upon  the  death  of  either  party,  and  that  a  liberal 
interpretation  of  thie  remedial  statute  would  include  the  appellee  v/ithin 
the  scope  of   t'.a  terms  "heirs  and  legal  repreE3ntativeE." 

fflio  injuries  out  of  'fihiol-i  tiais  suit  arose  v/ere  inflicted  Ilarch  26, 
1906.     Tlie  deceased  instituted  suit  on  April  4,   1907,   and  died  in  August 
of  that  yecr.     Thct  suit  was  abandoned  after  his  des.th,   and  this  suit 
instituted  in  September,   1907.      On  June  11,   1908,  appellee,  learning  on 
tliat  day  for   tie  first  time  of  th£  existence  of  the  othar  living  v/ife, 
filed  her   trial  aiTientf-icnt  asserting'  har  lislits  as  a  putative  wife. 
Under  these  circurasta:ices,    the  appellant's  plea  or  two  years'   limitation 
■'./as  properly  overruled. 

V/o  find  no  error  in  the  judgLient,  and  it  is  affirmed.    ,. 

DIUKLIK,  J.    (dissenting).     Although  iJrs.  Ilaggie  Robertson  acted,  in 
perfect  good  faith  in  har  attempted  marriage  to  J.  P.  Robertson,  yet,  as 
it  was  conclnsivel"  shown  ttxr.t  he  was  never  divorced  fro:.i  I.Irs.  Annie  Budd, 
and   Qisioforo  was  legdlly  incapable  of  coutracting  a  secoix'.  vclid 
marriage,   it  follows   chat  Lh-s.  llaggie  E.obert£on  was  never  the  lavtful  vlfe 
of  J.  i.  .  llobortson.     For  the  s^ma  reason  lirs.  .Uinie  Budd  never  chajiged 
her  legal  status,  ac  tl^   lawful  vife  of  J.  P.  "lobertson,  by  her  attempted 


72. 

niarria.'je  with  John  Budd;   and  the  fact  that   she  has  not  seen  fit  to  "be- 
come a  party   to   this  suit  ojid  ask  for  damages  for   ttie  injuries  in  con- 
troversy sustained  by  J.  P.  IJobertcon  does  not  affect  the  question  as   to 
whether  or  not  i.Irs.  Liaggio  P.oliertEon  is  entitled  to  recover.     If  rlrs. 
Maggie  Robertson  was  not   the  lav;ful  v.ife  of  J.  P.  Robertson,   then  in  no 
sense  was  she  his  heir,  vdthin  the  moaning  of  Sayles'   Ann.   Civ.  St.   1697, 
art.   3353a,  providing  that  causes  of  action  for  ijersonal  injuries  other 
than  those  resulting  in  doath  shall,  ti^on  the  death  of  the  person  in- 
jured,   survive  to  and  in  favor  of  his  heirs  and  legal  representatives-. 
She  did  not  sue  as   the  exocutrijc  or  admiuistratri:;  of  his  estate  for  the 
benefit  of  his  heirs  and  creditors,  but  sought  to  recover,  and  did  re- 
cover, 4''2,500  in  her  own  personal  right,  v/ith  no  evidence  to  su^^port 
that  claim  except  the  fact   ttiat   she  in  good,  faith  mari-ied  and  lived  v/ith 
J.  P.  Robertson  as  a  wife,   and  that  the  cause  of  action  accrned  to  J.  P. 
fiobertson  during  the  orcistenco  of  tliat  relation.     Unquestionablj^  lirs. 
Annie  Budd,  as  the  surviving  lawful  vife  of   J.  P.  Robertson,  had  an  in- 
terest in  the  cause  of  action  asserted  in  this   suit.     Under  the  laws  of 
this  state,   J.  P.  Robertson  did  not  at  his  deatl".  leave  t'vo  surviving 
wives.     Under  the  comiiion  la^v  the  cause  of  action  asserted  abated  v;it!-.  the 
death  of  J.  P.  Robertson,   but  b;^  article  3553a,   Sayles'  Ann.   Civ.  St. 
1897,    it  is  made   to  survive  to  his  heirs   and  legal  representatives.      Tlae 
tasis  for  2ier  contention  that  she  is  a  legal  representative  of   J.  P.  Rob- 
ertson is  her  claim  tlmt  she  acquired  and  CTmed  a  half  interest   in  tho 
cause  of  action  before  his  death.     I  deem  it  unnecessary  to  consider 
whether  or  not  such  sn  interest  v/ould  constitute  her  a  legal  represent- 
ative of  J.  P.  Robertson  after  his  death,   as  I  do  not  believe  she  ever 
acquired  such  an  interest.     Her  contention  is   that,   as   she  was  in  good 
faith  his  putative  wife,   the  cause  of  action  v;as  conj.iunity  property  br - 
tv/een  than,   and  each  o^vned  an  undivided  one-lialf  interest  therein. 

Sayles'  Ann.  Civ.  St.   1897,  art.  296C,   re2<?.s  as  follows:    "All 
property  acquired  by  either  husband  or  wife  during  t]ie  marriage,   e;:cept 
that  which  is  acquired  by  gift,  devise  or  descant,   shall  be  deemed  the 
common  property  of  tlie  husband  and  v/ife,    and  during   tlie  coverture  may 
be  disposed  of  by  the  husband  only."     By  this   article  of    liie  statute  the 
cause  of  action  sued  on  prima  facie  was  mnjde  the  community  property  of 
J.  P.  Robertson  and  his  v;ife,  I.irs.  Annie  Budd,  vesting  in  each  a  half 
interest  therein.     Under  repeated  decisions  of  our  higher  courts,   it  is 
a  settled  principle  of  la./  tliat,  rhen  a  marriage  is  held   to  be  unlav/ful, 
the  putative  wife,  'vho  has  assumed  and  sustained  that  relation,  believing 
in  good  faith  the  marriage  to  be  lavdial,  v/ill  be  entitled  to  one-half  of 
all  property  acquired  by  U\e  joint  labors  of  the  t-vo,  even  in  tiie  absence 
of  proof  of  the  e::tent  of  labor  contributed  by  each.     Barlcley  v.  Dumke, 
99  ■2ex.   153,   67  S.  M.   1147;  Ilorgan  v.  I.Lorgan,   1  Te::.   Civ.  App.   315,   21 
S.  V:.   154;  lawson  v.   Lawson,   30  Te::.  Civ.  App.  43,    69  S .  U.   246;  Allen 
V.  Allen   {Te::.   CiVo  App.)   105  £.  ''I.   54;   Chapman  v.   Chapraaii.  •       -'    .' 
16  Tex.  Civ.  App.  583,  41  S.  V.'.   533;   Speer  on  the  Law  of  Ilaxried  '/omen. 
Sec.   178. 

Tho  caser  of  Laws  on  v.  Lavson,   supra,  ^/ra.s  a  controversy  between  Harry 
Lawson  and  his  putative  v/ife,  Caroline  Lawson,   over  certain  property 
acquired  by  than  during  their  marriage,   Caroline  in  good  faith  believing 
tliat  the  marriage  was  a  lawful  raax-riage;   and  the  finding  of   the  trial 


73. 

court  was  as  follows:      "All  the  property-  in  controversy  v/as  acquired  "by 
tlis  joint  efforts  of  Carolire  and  Harry  in  the  same  maimer  as   if  t:-j3y 
had  been  hustaiod  and  v;i.Ce,  tot  in  v;hat  proportion  their  respective  lahors 
contri'buted  to  puch  acc-v-.raulat ion  I  an  unable  to   say."    A  juclj^nt  wa" 
rendered  by  the  tri^l  court  decrooi:jg  to  Caroline  Lawcon  one-half  the 
property  so  acquired,  and  in  tho  opinion  of  the  Court  of  Civil  j*.p)pral'; 
affirming  that  jud^rjtjnt,   tlxj   fcllowlr^  language  v;as  used:      "In  the  case 
at  bar,   inasmuch  ac  plaintiff  was  never  the    lav/ful  v/ife   of  Karry  Lav.'90n, 
the  could  not  in  any  event  be  entitled  to  the  full  property  rights  of  a 
wife  sush  as  homestead  rig!:ts   in  a  horasstoad  the  separate  property  of 
tiic  husband,   or  a  one-third  life  estate  in  his  separate  realty.     But  if 
in  good  faith  sliD  has  entered  into  tlie  relation,    the  courts   -.lill  not  re- 
fuse her  tb3   just  fruits   of  the   labor  of  her  hands  and  permit    the  hus- 
band, vao  is  iqually  guilty,    if  cither  is,    to  appropriate  tte  partner- 
ship earnings   to  his   mm.  use.     Hiat  this  distinction  has  been  recognized 
is  clear  from  the   opinion  in  Chapman  v.    Cliapman,    16  Toj:.   Civ.  App.   332, 
41  S.  I'i.  543,   cited  by  appcllaat,  where  the  court  refused  to  awax-d  to 
the  putative  ^7ife  the  full  rights  of  a  vd.fe   in  property  v/hich  v;as  a  do- 
nation by  the  state  to  a  hurband  and  to  the  anquir.ition  of  v/liich  she 
contributed  nothing,   but  did  give  to  her  a  partnership  interest  in  per- 
sonal property  acruired  by  their  joint  efforts  during  the  existence  of 
the  relation.      It  would  seen  tha*.  good  faith,  vhetlier  rostiiig  i:i  •m'r'^alr-; 
of  fact  or  raietalJD  of  law,    is  enough  to  authorize  trij  courts  to   treat 
the  relation  ac  a  partnership  upon  proof  that  sonc thing  was  actiially 
contributed  by  each  to  the  acquisition  of  tYB  property  claimed." 

The  case  of  Ilorgaa  v.  Uorgan,   supra,   was  a  controversy  betv;oen  Susan 
H.  Morgan,   surviviag  lav;ful  v.lfe  of  John  S.  !,Iorgaja,   ^nd  his  surviving 
'putative  wife.     Eie  property  invol.ved  was  ICO  acres  owned  by  JoJm  E.  Mor- 
gan at   die  time  of  his  putative  marriage,   and  other  property  accumulated 
after  that  marriage;   and,   following  an  ex.tsnEivo  revie^-'  of   Cie  authori- 
ties,   the   Court   of  Civil  Appeals  used  this  largusge:      "\7e  are  of  tl:e 
opinion,   therefore,   that,   if  appellant   (the  putative  v.lfe)   in  good  faith 
believed  that  sYs  was   the  lawful  wife  of  John  E„  Uorgan,   she  should  not 
be  deprived  of  her  right   to  participate  in  the  property  acquired  through 
their  joint  efiorts,,  and   tint  shs  should  have  been  allov/ed  to  prove  th^t 
fact,   and  that  this  issue  should  have  been  submitted  to  the  jury.      Of 
course,    tlais  vrauld  give  ai^pcllcnt  no  right  to  any  share  in  the  property 
which  John  E.  Ilorgsn  hai?.  at  tte  time   of  his  attempted  marr jage  to  her, 
vshQther  such  property  be  his   separate  property  or  tl:e  commiuity  property 
of  him  and  his   first  vafe.      T.iis  by  our  statute  vrould  go  to  his  lav/ful 
wife  and  child.     iTewland  v.   Holland,  45  Tex.   508." 

It  will  bo  noted  thct   in  both  cases   last  discussed,  Uorgan  v.  Morgan 
and  Lav;son  v.   Lawson,    tlie  putative  v/ife  -.ras  given  one-half  of  such  prop- 
erty only  as  had  been  acquired  by  the  joint  efforts   of  herself  and  puta- 
tive husband.     Likewise, 'in  the  case  of  Eouth  v.  P.outh,    57  Te::.   589,   the 
prq[)crty  involved  v.'as  acquired  by  the  joint  labor   of   tlic  parties   in  the 
putative  marriage,   as   shown  on  pages  593  and  594  of  t"ne  report  of  that 
case. 

In  tho  case  of  BarKLey  v.  DumJco,   99  Tex.  155,   87  S.  T;-   1148,    the 
cases  of  I.tox-gan  v.  Llorgan  and  lav.'scn  v.  Lav/son  are  approved,   and  the 


74. 

court  uses    tte  following  la:igucxgc-;      '"I^crGfore  we  thinlc  it  should  "be 
taken  as   the  cottlcd  doctrine  in  this  state  that,    iu  ca^s  of  a  raarrjjige 
of  tho  charafiter  of  that   in  controvorcy,   the  putative  '.vife,   so  long  as 
sho  acts  injiocsntly,  hao,  as  to  tho  property  aoquired  during  that  time, 
the  rights  of  a  j.sv.'ful  -./ifo."     In  that  cace,  hov-xsver,   th£  property  in 
controversy  -:!zs  ey-Clusivoly  the  property  of  tZ'js  putative  '/afri,   and, 
farther  than  the  general  terms  used,   there  is  nothing  to  indi.cate   that 
tho  Supreme  Cora't  intended  to  extend  the  doctrine  of  tl-fi   two  cases  of 
Lorgan  v.  I'.orgaii  and  La.vrion  v.  LawFon,   and  to  hold  that   the  putative 
wife   is  entitled  to  o?:.o-half   of  the  property  acquired  by  the  husViri 
during  tho  marriage,   but  which  was  not  acquired  by  the  joint  efforts  of 
the   t'A'o.      It  secas   to  tho  writer  th^at  the  language  quoted  above  from 
the  Supreme  Court,    if  construed  literally  and  without  limitation,  would 
Eu?3tain  the  claim  of  tlae  putative  \nfe  to  administer  as  survivor  of  the 
cc-nmunity  upon  all  property  acquired  by  her  and  her  putative  husband 
during  the  existence  of   tI^a  o,sri!Tied  relation  of  husband  and  wife,  con- 
trary to  tho  doc- trine  announced  by  Justice  V/illiaviS   in  the  case  of  Chap- 
man V.    Chsgpman,  11  Te::.  Civ.  App,  392,    32  S.  \!.  564,    and  would  also  sus- 
tain tlE  claim  of  -'che  pi:tative  wife,    in  case  she   siTvive  him,    to  an  in- 
heritable interest  in  property  acquired  by  tjoo  husband  during  the  exist- 
ence of   tice  putative  marriage,   even  thou.;^!  aci^ired  by  gift,  devise,   or 
deiicent. 

In  the  casG  of  Allen  v.  Allen   (Tex.   Civ.  App.)  105  S.  Tf.  54,  by  this 
court,   and  107  S.  "i".  528,   by  the  Gupce:me  Court,    tho  ri^it   of  fiie  putative 
wife   to  one-half  tiie  property  invol-ved  v/as  recognized.     However,   the 
property  involved  in  that  case  con'^isted  of  a  tract  of  160  acres  of  land 
which  was  bro-ught  by  the  I'Oisband  on  a  credit  and  af terw-rd".  paid  fcr   by 
money  acquired  by  the  putative  vdfe  by  gift  from  her  mother,   ard  a  block 
of   land  in  the  to-.m  of  ?clar,  \fn3Ch  -svas  purcho.;.c;d  mch  proceeds  of  crops 
raised  on  the  160-acr3  tract,   and  all  of  tho  property  was  acquired  dur- 
ing the  putative  marriage. 

la  tho  Tvriter'o  investigation  of  the  decisions  of  oia:  state,   no  case 
has  been  found  holding  that  property  not  aC'^airea  by  the  joint  labors  of 
the  partners  of  a  putative  marriage  would  be  owned  by  then  jointly,   even 
though  the   same  raigiit  be   the  coronunity  property  of    the  husband  and  his 
lawful  wife  under  article  296G,   above  quocel.     If  that  question  has  never 
been  settled  by  the  decisions  of  o;ir  state,   then  it  'vas  certainly  not  in- 
tended to  be  eabraced  in  the    laiiguage  of  tl'j3  Suprene  Court  m  the  case  of 
Barkley  v.  Dutalte,   quoted  above.     "CJherefore  we  think  it  should  be   taken 
as  the  settled  doctrine  in  this  state,  '  etc.    (Italics  mine.) 

It  cannot  be  said  tiat   the  causa  of  action  in  favor  of  J.  P.  Robert- 
son accruing  by  ieason  of  the   injuries  ho  raceived  in  the  accident   in 
controversy,   aid   rnaediately  upon  the  happening   of  the  accident,  was  ac- 
quired by  the  joint  labors  of  himself  and  !>?.  Haggle  Kobertson.     Ho 
evidence  v/as   introduced  to  show  that  J,  P.  Robertson  ever  entered  into  a 
contract  -./ith  :h-E.  ::aggia  Eobertson  specifically  conveying  to  her  an  in- 
terest in  the  cause  of  action,   and   to  say  that  sho  had  such  an  interest 
\TOuld  be  to  say  that  such  an  interest  accrued  to  her  as  an  incident   to 
Jier  nax-riage  contract. 


75. 

In  tl-B  case  of  Chapman  v.   Chapman,  11  Te::.   Oiv.  App.  392,   32  S-  1, 
564,   Justice  V/illiams..   now  of  our  EuiJrer.ie  CoTxrt,   said:      "Hio  ri:^it  given 
"by  our  statutes   to   the  survivor  of  a  mai'riago  to  adminiater  the  estate 
of   tlae  decoasecl  spouse  and  tlis  proxoorty  v^iich  "belonged  to  them  in  common 
(P.ev.  £it.  arts.   2165,   E167,  2181)   is  given  to  him  or  her  vtio  is  recog- 
nized "by  the   lav/  as  the  lav;ful  hus'band  or  vafe  of  the  deceased,   and,   as 
appellant  war  never  lawfully  married  to  Eioraas  Chapman,   she  had  not  tlae 
riglit  to  adraxnicter  in  preference  to  any  one  else.     For  the   same  reason, 
tlaere  was  no  community  estate,   such  as   is  contenrplatcd  by  tlie   statute, 
between  herself  and  the  deceased.     Eie  community  estate  is  created  by  law 
as  an  incident   of  marriage,   and  does  not  arise  from  contract  bet\.-een  the 
parties.      It   is  created  "by  law  only  as  between  those  viio  occupy  towards 
each  other  the  relation  of  husband  and  wife.'' 

Statutes  governing  the  subject-matter  of  a  contract  are  as  much  a 
part  of  the  contract  as  tliough  expressed  tlierein,   and  in  this   sense  are 
incidents   to  the  contract.     11  Cent.  3>ig.  Sec.   750,   and  authorities  tliero 
cited.     Obviously,    this  aiinounceraent  lias  reference  to  contracts  only 
viiich  are  legally  binding.     The  statutes  defining  property  rights   of 
hus'band  and  wife  baca'ae  a  part  of   tlae  rarriage  contract  between  J.  P 
Robertson  and  his   lawful  wife,  Ilrs.  Annie  Budd.   but  did  not  bocorje  a 
part  of  the  marriage  contract  between  J.  P.  Robertson  and  lirs.   Llaggie 
Robertson,   as  J.  2.  Robertson  was  not   legally  capable  of  entering  into 
the  lapt-named  contract,   and.   ttie  same,   therefore,  had  no  binding  effect 
in  lav/  upon  either  of  the  parties. 

To  establish  an  arbitrary  rule  that  in  all  cases  a  putative  wife  is 
entitled  to  a  half  interest  in  sueli  a  cause   of  action  as  this,   accruing 
to  her  do  facto  husband,   vZaon  she  contributes  nothing  to  its  acquisition, 
and  thus  reduce  t.io   interests  of  the    lav/ful  '.Tifc  and  children  tlierein  to 
one-half,   regardless  of  how  short  may  be  t'.ie  duration  of   tliat  relation, 
regardless   of  the  pecxmiary  value  of  such  a  claim,    and  regardless   of 
equities,   even,   in  favor  of  the  la^\ful  wife,    in  vv£\om  tlic  statute  has 
vested  a  one-half  interest  in  the  cause   of  action,  would,   in  ray  opinion, 
extend  protection  to   the  putatix-o  wife  further  than  is  v/arranted  by  our 
decisions,   and  further  than  th£  principles  of  ec^uity  \-X)uld  require. 

It  vADUld  be  difficult,    if  not   impospiblo,    to  deterninc  how  much  the 
efforts  of  each  partner  to  a  putative  marriage  contract  had  contributed 
to  the  purcIoasG  cf  property  acquired  by  the   joint  labors  o;  both,   and  it 
is  well  settled  tiiat,    in  the  absence  of  proof  of  an  agreement   to  a  con- 
trary effect,  parties   to  a  partnership  mil  be  held  to  be  equal  partners. 
Likewise,  parties  contributing  to  the  purcliasc  of  property  for  their 
joint   use  and  benefit,  but  not  as  partners  strictly  speaking,   are  pre- 
sumed to   ovn   tlE  sar-o  in  equal  interests;    in  the  absence  of  proof  tliat 
one  contributed  more  tlian  anotlicr,   or  that  by  contract  "betv/een  tliem  it 
was  agreed  that  tlx   interest  of   one  sl-jeuld  be  greater  than  that  of  an- 
other.    Upon  this   theory  the  docisions  above  cited  and  discussed,  hold- 
ing that  property  acquired  by  the  joint  labors  of  Cio  parties   to  a  puta- 
tive marriage  is   ovmod  by  tliem  in  equal  interests,   can  be  sustained  with- 
out attacJiir^^  to  such  a  marriage  contract  the  incidents  attached  by  our 
statixtoE   to  a  lav/fui  marriage  contract.     If  some   of   the  statutory  inci- 
dents of  a  la\/ful  marriage  contract  ai*c  to  be  held  incidents   of  a  putative 


76 


mari'iase  co;:trcct  alco,    I  cau  percaive  no  valid  rej.sou  why  all  of  those 
iucicleats  sliOuld.  not  no  attcrc"^.,   aiid  thus  jilve  tae  putative  "vife  tlio  right 
to  plead  coverture  agaiuct  hav  covitrccte  other  tliau  for  nececsaries  and 
for  the  benefit  of  her  separate  ectate,  and  inheritable  interest  in  the 
separate  estate  of  the  husband,  homestead  rights,  and  all   other  riglits 
Siveu  by  statute  to  a  lav/ful  wife.     If  some  of   these  rights  are  to  attach 
to  the  putative  marria,33  contract  as  incid.ents   thereto,   and  others  denied, 
where  shall   the  boundary  line  be  dravrn  betweeii  such  as  do  axaC  such  as  do 
not  so  attach? 

The  fact  tl-^it  li's.  I'at'^gie  /fobertson  nursed  J.  t.  riObeitson  in  his 
illness  resultin;2  from  the  injuries  io.v  -.hich  tliis  suit  was  prosecuted 
woiild  no  more  entitle  her  to  an  interest  in  the  cause  of  action  than. 
\TOuld  the  sexvices  ronderod  by  Ms  physician  in  treatraont  foi    the  ssmIQ 
injuries  vest  in  hiin  the  ri^ht   to  agcovgi-  for  t:o  iiifliction  of  those 
injuries. 

For  the  reasons  above  noted,  I  believe  that  the  judgment  in  favoi-  of 
Ijrs.  :'a,s,;i'ie  Robertson  should  be  reversed,  and,  as  to  her,  jud^^Tient  should 
be  here  rendered  in  favor  of  appellaiit. 


^„.,£>«S**-^-^%<-1^**--^^=^ 


I  y^'-i^o     3     ^   en — I        •^ 


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77. 


JEPJ'Ami  V.  TmiOlS  et  al. 

'•"       (ITo.    10,715.) 
(44:  La.  Ann.  G20)  April  16,   1892, 
(Supremo  Court  of  Louisiana. ) 

Appeal  fron  civil  district  court,  parish  of  Orleans;    Uiomas  T7. 
Ellis,   Judg'3, 

Action  "by:  Jogepliino  Jerrnann  against  Ilary  Tenjieas  a:ad  others  for 
^be  revindicat.lia.n  of__tjg__undivided  ha.rf 'of  ce-^t-^ii  real  estate  and  l3f 
the  revenues  thereof.     Fra-n  a  judgment  for  d-; :t;.a.,  plaintiff  en- 
tered app"ec:r7    r.evers'ed  and  new  ju.dgacnt  entered . 

Bermudez,   G.  J.     '?nic  case  was   once  before  this  court  on  an  appeal 
from  a  judgment  sustainins,    in  part,   an  exception  of  no  cause   of  action, 
and  overruling  it  otherwise.     39  La.  Ann.   1021,   3  South.  Rep.  E2S.     Th.Q 
judgnsnt  vras  co]icidored  oogcui'G,   and  co:ictrued.     \/ith  the  interpretation 
thus  put,   the  case  went  haclr  for  further  proceedings.     After  trial   the 
plaintiff  v/as  cast,   aid  thereupon  appiealed.     iTIie  action  has  no"w  for  its 
object  the  revindication  of  the  undivided  half  of  certain  real  ectate, 
and  of  the  revenues  thereof,   since  judicial  denaud.     The  petition  is  in 
the  name  of  Josephine  Jerraann,  born  Attinger,  residing  in  the  village  of 
I!ooE,   Cantoajrpfist,   upper  Alsace,   Germany.     It  alleges  that  she  msmax- 
ried  on  the   19th  of  Ilarch,    1651,    in  the  siHage  of  Heispach,   in  said 
Upper  Alsace,   to  Francis  Jerraann,   who  was_jmoTOi_^ubsec[uen^^ 
leanE_bji^h3_uS^^f~S<lm2ia^ 

inarrlage_jtamed  Josephine ;    that  shortly  after  tie  birth  of  that  child  he 
emigrated  to  Aaerica,  remained  unheard  frora  by  her  until  long  after  his 
death,  which  occurred  on  tne  2d  of  June,   1873;   that  he  contracted  mar- 
riage in  this  city  with  Ilary  Tenneas,   the  defendant,   about  1855,  they 
having  several  children;   that  he  left  real  property,  which  is  described, 
aixL  vJiich  has  yielded  revenues  vhich  were  received  by  I-"ary  Tenneas  and 
her  children,   *-0   should  be  condemiiad  to  pay  the  same  back;   that,   con- 
ceding that  the   second  marriage  was  contracted  in  good  faith  by  tliat  per- 
son,  the  petitioner  is  er.titled,   under  the  law,   as   surviving  spouse  in 
community,    to  the  uixLivided  half  of  said  property  a:A  revenues.     Tlie  pe- 
tition concludes  with  a  prayer  in  accordrjace  with  the  averments.      To 
this  petition  an  e::ception  of  no  caiiise   of  action  v;as  originally  filed. 
The  judgment  of  the  lo\.'er  court  upon  it  v/as  that,    in  so  far  as  the  peti- 
tion concerns   the  money  demaiid  against  the  heirs,  the  exception  be  ir^in- 
tained:   a:id  as  to  the  widow,   ar,  far  as  concerns  rents  and  revenues,  up 
to  judicial  demand,   it  be  also  maintained;   aad  that  otherwise  it  be  over- 
ruled.    Eiis  judgment  was  affirmed,    the  court  aaniounc  rig  that  the  only 
question  really  presented  for  solution  wcs  \;hether  there  vcs  any  liabil- 
ity against    <he  defendant  for  revenues  received  before  tte  suit,   and  de- 
ciding it   in  the  negative.     59  La,  Ann.   lOSl,,   3  South.  Rep.   229.      Th.e 
court  held  that   otharv.'iso  tie  petition  disclosed  a  cause  of  action,   re- 
affirming the  established  doctrine  tliat,  v/Iiere  a  man  contracts  a  second 
marriage  vjiile  his  firrt  v/ife   is    living  and  undivcrcsd,   and  dies  leaving 
common  property,  acquired  during  the  second  marriage;   contracted  in  good 


76. 

faith,  the  ostcte  will  bo  shared  equally  by  the  two  v.Ivcb.  After  the 
case  had  gone  "oaoic  to  tiie  lower  court,  it  via.s   tried  on  issues  formed  "by 
a  goiioral  denial,  retting  forth  good  faith  on  the  part  of  the  defendant, 
aiid  a  denegation  of  the  alleged  marriage  of  her  husband  v/ith  the  plaintiff. 
Oral  ?aad  docujTientai'y  proof  was  adduced,  and  the  district  judge  dismissed 
the  suit,  with  judgment  against  plaintiff,  and  for  defendant.  He  says 
that  it  is  possible  that  the  plaintiff,  Josephine  Attinger,  and  Josephine 
Zimmerman  are  one  and  the  same  xJerson,  and  that  Francis  Jormann,  who 
married  Josephine  Attinger,  was  the  person  who  afterwards  married  the  de- 
fendaiit;  but  this  laas  not  been  proved  with  moral  certainty. 

1.  On  the  trial  in  1889  certain  documents  purporting  to  be  copies  of 
the  act  of  marriage  of  the  parties,  of  the  registi'y  of  the  birth  of 
Francis  Jermann,  and  of  tliat  of  Josephine,  born  during  the  marriage,  were 
offered  in  evidence.  Their  adiiission  was  objected  to  because  they  had 
previously  been  offered  and  excluded,  a  bill  being  reserved,  to  which  they 
are  attached,  and  that  it  is  contrary  to  the  ordinary  rules  of  judicial 
proceedings  to  offer  the  same  a  second  time  on  the  same  trial;  and  also 
because  they  are  inadmissible  in  evidence,  v;ithout  previous  proof  of  tlie 
foreign  lav/  of  the  locality,  to  the  fact  that  the  lav;  required  such  re- 
cords to  be  kept,  and  that  the  officers  certifying  such  records  are  the 
custodians  thereof,  and  are  authorized  to  give  certificates.  The   ob- 
jections v;ere  overruled,  and  the  eviuonce  received.  It  is  a  fact  tliat  in 
Zfi88,  at  the  opening  of  the  trial  before  the  judge  t]ion  presiding  over  the 
court,  tiio  documents  were  offered,  and  on  objection  excluded,  a  bill  being 
reserved;  but  tl-.is  is  matter  of  no  moment  to  prevent  their  subsequent  ad- 
mission by  tlie  same  judge  o.  his  successor,  as  v.'as  the  case.  Judges  have 
the  right,  proprio  motu,  to  correct  rulings  of  theirs  made  during  the 
course  of  proceedings  before  then,  prior  to  final  judgment,  and  are  cloth- 
ed even  v;ith  the  pov;er  after  final  judgment,  a:id  before  signature,  to  set 
aside  of  their  own  accord  their  conclusion,  and  ti-y  the  case  de  novo. 
Code  Pr.  art.  547.  Eiat  which  they  can  do  spontaneously  they  assuredly 
can  accomplish  on  the  suggestion  of  tiie  party  aggrieved.  Tlie  more  in- 
cludes the  less. 

On  the  second  ground,  conceding,  arguendo,  tliat  proof  of  the  foreign 
lavi/s  should  be  made,  it  is  iuimatei'ial  tliat  it  be  adduced  previous  to  the 
offer,  |t  suffices  that  it  is  made  befoic  the  closing'  of  the  evidence,  as 
was  done  in  this  case,  by  the  production  of  the  authentic  teicts  of  the 
local  laws  from  boolcs  or  6::tractE,  under  admission  of  v/hat  the  foieig-n 
consul  here  \/ould  sv;ear  to  if  heard  as  a  v^itness.  Besides,  litigrants  are 
not  unnecessarily  to  be  controlled  in  the  order  of  the  introduction  of 
their  evidence  in  civil  caseo.  It  is,  hov/ever,  questionable  whether  such 
proof  v/as  at  all  exigible,  as  the  docui'Aents  beai  the  certificates  of  the 
local  officials,  v.hose  siguati^res  are  attested,  under  seal,  by  the  United 
States  vice  consul,  who  expressly  declares  "that  the3''  v/ere  duly  coa-.-iisEion- 
ed  to  execute  such  acts,  and  that  their  cignatiires  ai-e  genuine."  Under 
the  ruliiig  in  the  Stein  Case,  9  La.  281,  tlie  objection  would  have  stood; 
but  it  has  no  merit  nov/,  for  since  that  decision  the  legislature,  to  do 
away  with  its  efl'ects,  passed  Act  No.  38  of  1837,  providing  for  the  au- 
thentication of  foreign  documents  before  the  coiirts  of  tiiis  state,  .-.''hich 
is  still  in  force,  and  settles  the  question.  It  v/as  considered  in  Success- 
ion of  V/edderburn,  1  Bob.  (la.)  265.  In  presence  of  tliis  special  statute. 


79. 

v;hat  may  "bo  foiud  to   tho  contrary  in  1   Jreenl,  Ev.  par.  486,  relied  on 
"by  defe::da;it,   dues  not  ootain.      Tae  documents  were   therefore  proi^erly 
admitted, 

2.    Ihc  act  of  marriage  shows  that  Francis  Jermann,    on  the  19th  of 
Zlarch,   1051,   a  choorcalcer,   born  on  Hovember  1,   1020,   aged  31  years,   domi- 
ciled at  Reistach,   and  Josephine  Attinger,    sane  domicile,  born  on  Hovem- 
ber  29,   1G23,   at  llooso,    Qie  naiaes   of   the  parents   of  both  being  siven, 
were  lawfully  married  by  the  mayor  of  Reisbach.     The  second  docunent  sho\« 
that  Francis  Jermann  was  born  IToveober  1,   1020,   aid  givos,   as   the  names 
of  his  father  aiid  motlier,   tho  same  as  are  found  in  the  act  of  marriage. 
Ihe  third  act  shows  that  Francis  Jeraann,   at  the  time  of  tYe  registry  of 
the  birth,  presented  to  the  local  proper  officer  a  female  child,   born  on 
the  20th  of  June,   during  his  marriage  with  Josephine  Attinger,  his  vafe, 
to  whom  the  name   of  Josephine  was  given.      Shero   is  satistactory  oral  tes- 
timony proving  that  one   Fraixis  Jermann,  from  Keisbach,   a  shoemaker, 
married  about  1051,    (1052,  )  at  Itieisbach,   a  girl  named  Josephine,  born  at 
r.oose,  v;ho  was  loiov/n  as  Josephine  21-araermaiin,   her  father  being  a  carpen- 
ter,— a  "zimmeriaann;"   that  during  tluoir  marriage  there  was  born  a  girl 
named  Josephine;   tliat  eorae  time  after  Francis  left  the  country  for  Amer- 
ica;  and  that  he  was  met  at  Louisville,    Osyloa,   and  He-,;  Orleans,   at  v4iich 
last  place  he  v/orked  as  a  choei-nalcer .     Sicre  is  no  dispute  that  some  time 
in  1855  tlie  defendant  Ilary  "enneas  married  a  man  by  the  naiie   of  Francis 
Germaine,   and  that   several  children  were  born  during  that  marriage  who 
are,   mth  their  mother,  made  defendants  in  this  case.     Ihe  contention  is 
that  Francis  i3ermaino,  v;lx»m  the  defendant  married,    is  not  the  Fra^icis 
Jermann  who  married  Josephine  Attinger;   and  that  the  Josephine  Eimmer- 
mann  of  tiiiom  three  v.ltnesses  jrpeatt  of  having  ]uiown  in  lloose  is  not  the 
Josephine  Attinger  vdiom  Francis  Jermann  married  in  1851  at  Reisbach. 
Unless   the  witness  Blaize  Ueberschleg  perjured  himself,   and  is  unworthy 
of  belief,   the  identity  of  Francis  Jermann  ^ath  Francis   Sermaine  is  suf- 
ficient!:/ establisl'ed;   for  lie   swears  unc^oalifiedly  to   the   same,  and  cir- 
cumstances his  testimony  so  as  to  leave  no  doubt  on  the  sxTbject.     Fur- 
ther facts  might  possibly  have  been  elicited  from  him  v/lxLch  would  have 
better  establislBd  the  identity  beyond  all  imaginable  peradventure.     Ihe 
defendant  in  her  testimony  furnishes  a  link  by  declaring  that,   from  his 
own  saying,  her  husband  was  born  on  tl:e  Ist  of  Hovember,   lOEO,    the  date 
of  the  birth  of  Fra:icis  Jermann.     The  witness  named  testiiies   that  tiic 
girl  T.hom  Francis  Jermaim  iTiarried  at  Itoose  v/ent  b3-  the  name  of  Josephine. 
He  does  not  toiow  her  family  name;  but  rho  vas  called  Zimmermann,  perhaps 
because  her  father  v.^as  a  carpenter,   vhich  "zimmermann"  means  in  Germaii. 
He  says   there  v.-as  born  to  tliem  a  girl  named  Josephine;    tliat  Francis  Jer- 
mann was  a  shoemaker;   that  he  made  shoes  for  him  here,   and  that  he  passed 
here  as  the  husband  of  th-G  defendant.     The  sister  of  the  v/itness,  lirsr 
Ueyers,   and  Frank  I.allerich,  plaintiff's  agent,   testify  in  a  way  ^Aiich 
sufficiently  establishes  that  the  Josephine  whom  Francis  Jermann  married 
in  Reisbach  is   the  Josephine  Attinger  named  in  the  act  of  marriage,   and 
who  is   tlTG  plaintiff  here,   and  tl^  mother  of   tho  little  girl,   Josephine, 
boi'n  during  their  marriage.     It  is  wcsrthy  of  note  that  the  name  of  the 
man  vh.o  married  the  defendant,  -Jiich  is   Germaina,   as  appears   on  the  deed 
of  purchase,    is   idem  sonans  vath  Jermann,   with  a  slight  variation.     At- 
tempts have  been  made   to  assail  the  testimcny  of  the  three  v/itnesses, 
heard  on  behalf  of  the  plaintiff,  by  questions  on  cross-exarjination,    the 


s 


80. 

object  of  v;Mch  appr.roiitly  was   to  confuce  t'.-enii   a:id  liavo  then  to  contra- 
dict themselves;  but   the  puri^ose  was  not  accorct^lished.     If  they  Iiavo 
Eho\/n  some  vacillation,   or  v/ealc  inei.iory,   they  promptly  correctod  or  e::- 
plained  thempelves,  -nhonever  the   opportunity  offered  itself  to  do  so. 
a.ieir  veracity  remains  unirapeached.     It  nmst  bo  noted  that  they  are  ordi- 
nary,  illiterato  persons ,   save  the  a^ent,   \&lo,  however,    testified  con- 
sistently,   on  tl:e  whole.     Sie  attaclc  on  his  motives  in  acting  as  the 
agent  of  the  plaintiff  does  not  vrealcen.,    if   true,  his  sworn  declarations. 
It  is  a  singular  ciicuastaiaco  tliat  the  defendaiit  did  not  offer  in  evi- 
dence her  act  of  marriage.     T.'as  it  becsuse   it  does  not  e::iEt,    or  becouse, 
if  exhibited,    it  raijlit  have   shovrn  recitals   of   some  -./eight   in  the   scale 
ia  favor  of  plaintiff?     The  reasonable  rec^uireraents  of  the  law,   even  as 
claimed  to  bo  announced  by  Greenleaf ,    (11  Sv.  par.  461,  )  have  been  suf- 
ficiently complied  with  to  establish  tla   identity  of  flio  parties  in  a 
case  like  this.     Eie  district  judge  consie.ered  that   the  identity  of  the 
parties,   and  consequently  tlic  marriage  of  Josephine  Attinger  with  Francis 
Germaine,   v/hom  the  defendant  maa-ried,  had  not  been  sufficiently  estab- 
lished.    Finding  tliat  tlie  marriage  is  pro\'ed  does  not  operate  a  convic- 
tion of  adultery  by  tlie  deferjiant,   and  stigmatize  her  as  a  disgraced, 
illegitimate  widow,   and  taint  her  children  as  adulterous  bastards.     The 
concession  of  the  plaintiff,   and  the  assertion  of  the  defendant,    that 
the   second  marriage  was  contracted  in  good  faith  by  the  vdfe,   justify 
tlie  legal  conclusion  that  the  marriage  produced  civil  effects  which  in- 
ured to  the  benefit  of  bo  Si  tl-B.  wife  and  her  issue,  under  textual  pro- 
visions of  tiie  lew.     Rev.   Civil  Code,   ait.   117.     It  must  be  conceded, 
ho\vever,    ttiat  it  v/as  a  difficult  undertaking  to  prove;    i;i  1889,    the    iden- 
tity of  the   individual  \'vho  married,    in  1051  in  Surope,  and  in  1655  in 
America,   and  who  died   in  1873.     Under  the  exceptional  circumstances  of 
this  case,   it  was  morally  £ho\rn,   so  as   to  warrant  the  conclusion  reached 
in  this  case. 

3.   Iho  record  shows  tliat    ^e  property  described  in  the  petition  was 
purchased  in  1871  during  the  alleged  second  marriage,   but   there  is  noth- 
ing that  v.-e  could  discover  establishing  the  revenues   since  judicial  de- 
mand,  a:id  we  do  not  find  the  admission  of  the  defendant,   alluded  to  by 
the  plaintiff;   vdio,   on  the  contrary;   says  that  there  is  not  a  syllable 
of  proof  o":  the  subject  in  the  record.      The  record  of  the  litigation  be- 
tween the  present  defendant  and  Ilallerich  might  Iiave  been  adriiittod  in 
evidence,  but  it  v.t>uld  not  have  proved  tlie  revenues  received  from  judic- 
ial demand  to  the  closing  of  tlie  trial.     At  best,   it  would  have  shovrai 
some  receipts,  and  the  case  vrould  have  had  to  progress  on  the  remanding 
for   the  rest.     It  is  better  not  to  try  cases  piecemeal,   and  to  dispose 
of  them  only  after  all  the  evidence  of  \7hich  tlioy  are  susceptible  has 
been  introduced  and  considered.     Eie  claim  of   the  plaintiff  to  one  half 
of   the  property  is  not  disputed  by  tlio  defendant,  who  utters  not  a  word 
against  it.     Even  then  it  could  not  be  successfully  controverted.      Sie 
real  estate  was  acquired  by  Jei-mann..   alias  dcrraaine,  during  the  exist- 
once  of  his  mairiage  -.vith  Josephine  Attinger,   vAiicn  w£.s  not  dissolved 
until  his  death;    in  1675.     It  \;as  acquired,    therefore,  during  the  com- 
munity regime,   aid  at    Uie  dissolution  of  tha  coinmunity,   by  the  death  of 
the  husband,   title   to  half  vested  in  Josephine  Attinger,   regardless  of 
tJie  second  marriage,   v&ether  contracted  in  good  faitii  or  not.      The  ques- 
tion as   to  Y.hat  became   of  the  other  half  does  not  arise,  by  reason  of 


81, 


the  admission  of  good  faith  mode  Isy  tJ3  iJlaintiff  in  favor  of  the  de- 
fendants,  and  of  th©  silence  of  the  child  of  the  first  marriagQ,   and 
of  the  absence  of  any  issue  and  contention  about  it.     Did  it  arise,   and 
were  it  res  nova,   it  might  present   sorce  difficulty,  particularly  if  the 
French  cyctem  was  consulted;   but,  under  the  rule  of  stare  decisis,   it 
is  finally  settled,  and  has  bee  cine  a  rule  of  property,   which  should  not 
be  lightly  disturbed.     A  perusal  of  tte   opinions  of  L!r.  Justice  Rost  in 
the  Cases   of  Patten  and  of   Inkstein,  1  La.  Ann.  and  7  La.  Ann.,  will 
amply  repay  reading,     ^e  q-ble  and  indefatigable  justice,  with  his  usual 
sagacity  and  erudition,  giiided  by  the  Spanish  law's  \*iich  have  a  bearing, 
and  which  he  quotes   in   the  first  case,   and  va.th  which,    though  at  the 
time  repealed,   our  law  was  assimilated,   in  tihe  second  case,   shows  that 
tlX!  second  half  passes   to  fhe  wife,  because  the  husband,   by  his  miscon- 
duct,  forfeits  all  his  rights  thereto  in  favor  of  the  deceived  wife,   and 
transmits  nothing'  by  his  death  to  his  issue,  vjho  are  thus  excluded  from 
all   inheritance,    except   that   of  his  separate  prc^gerty.     Patton  v.  Phil- 
adelphia,  1  La.  Ann.    98;    Inlcstoin  v.  Hubbell,   7  La.  Ann.   252;  Abston  v. 
Abston,    15  La.  Ann.  137;   Jermann  v.    Tenneas,   39  La.  Ann,   1021,   3  South. 
Rep.   229;   Clendenning  v.   Clendenning,    3  Ilart.    (la.)  438.     \7hile  revers- 
ing tte  judgment  appealed  from,   and  recognizing  the  ri^ts  of  the  plain- 
tiff to  one  undivided  half  of  the  property  involved,   with  a  reserve  of 
her  right  to  claim  the  revenues  from  judicial  demand,  we  think  that  it 
would  not   subserve  the  ends   of  justiae  to  nonsuit  her  as   to  the  rents, 
but  that  it  is  preferable  to  remand  tie  case, to  enable  her   to  prove  the 
came.      It   is   therefore  ordered  and  decreed  that  the  judgment  appealed 
from  be  reversed,   and  it  is  now  ordered  and  adjudged  that  there  be  judg- 
ment in  favor  of  the  plaintiff,  Josephine  Attinger,  recognizing  her  as 
the  ovsner  of  the  undivided  half  of  the  property  described  in  the  petition, 
and  entitled  to  half  of   th3  net  revenues   thereof  from  judicial  demand 
till  settlement;   ai:d   it   is  further  ordered  and  adjudged  that,   for  the  pur- 
pose of  enabling  her  to  recover  said  half  of  said  revenues,   the  case  be 
remanded  for  further  proceedings  according  to  la's?;    the  defendant  to  pay 
costs  in  both  courts. 


(U^<^-<^  ^ 


jc<2^^^:^ 


„.C3^^^ilt^<,^C^/ 


^L-/^^ 


.'tpO^.-^^^^-^^-^^?  i 


^   'p 


es. 


SYLVAiroS  n.  E.DLER,   IMTi   E„   S;M)Lnil,,   UU^LIMI  T, 
:/0:aiHIIIMOII  AHD  ffiORa:  D.   BLAXE,  Appellants  v. 
U.  R.   niESZ  AHD  ADA  B.  WIESZ,  Kespoudents. 

(5  Tfesh.  102.) 

AppecJ.  from  Sviperior  Court,   ICitsap  Goimty. 

The  opinion  of  the  court  vras  delivered  "by 

Stiles,   J. — Sylvester  H.  Sadler  and  Ilary  E.  Sadler  were  married  in 
the  State  of  Pennsylvania  in  1863,   and  lived  together  as  husband  and  wife 
for  about  eight  years,   at  tloe  end  of  vAiich  time  Sadler,  v,ho  \;as  a  sea- 
faring man,   left  his  wife  and  family  and  came  to  the  Pacific  Coast. 
About  1873  he  took  up  his  residence   in  Kitsap  county,   and  lias  resided 
there  ever  since.     His  wife  and  family  remained  in  the  east,   unlciov;n  to 
any  of  his  associates  ai:d  acquaintances  in  the  v/est.     Sadler  represented 
himself  to  his  friends  and  neighbors  and  to  purchasers  of  the  real  es- 
tate involved  in  this  action,   as  well  as  purchasers   of  other  land  v/hich 
he  acquired,   as  a  widower  v^iose  wife  had  died  a  number  of  years  ago,   and 
his  statements  vere  generally  believed  and  frequently  acted  upon.     In 
1883-4,  he  acquired  the   lands  wMch  are  the  subject  of  tliis  action  in 
part  by  purchase  deeds  from  private   individuals,   and   in  part  by  preemp- 
tion patent  from  the  IBiited  States-     Subsequently  he   sold  and  conveyed 
this  land  to  the  respondent,  U.  E.  ITiesz,   or  his  grantors,  by  numerous 
deeds,    in  the  body  of  some  of  which  he  stated  that  he  \;as  an  unmarried 
man,   and  in  others,   by  representations  to   the   officers  who  took  his  ac- 
knowledgements, he  caused  them  to  recite  in  their  acloiowledgments  that 
he  was  unmarried.     Niesz  paid  a  large  consideration  for  these  lands,  a 
considerable  portion  of  which  went  directly  to  Sadler,   and  his  convey- 
aices  Virere  taken  without  any  notice  or  siispicion  that  Sadler  had  a  wife 
living,   or   that  his  statements  as  to  his  condition  \:eTe  not  true.     In 
1869,    some  time  after  the  last   tract  vi^s  acquired  by  ITiesz,  I'ary  E.  Sad- 
ler appeared  in  the   state,   saw  Hiesz,   told  him  tliat  she  was  Sadler's 
v/ife,   and  asserted  her  right  to  an  interest  in  tlie  land,  but  offered  to 
relinquish  all  her  claim  if   she  v.^re  paid  the  sum  of  five  thousand  dol- 
lars.    This  v/as  the  first  notice  that  Kiesz  had  of  her  existence,  with 
the  exception  that  about  August,   1889,  he  heard  a  rumor  that  there  'vas 
a  woman  who  claimed  to  be  IJrs.  Sadler >     Upon  her  coming  to  Y/ashington, 
Ijs*  Sadler  took^up  her  res idence_wijai_he_r  fiusband 'and '  1 1 ved^  wTthr Him 
for  about  three  months,  but  after  that  time  and   ftira  year  previous   to 
the  trial  of  the  cause  tlie y' had  I i'ved  apart,  he  in  Seattle  and  she  in 
XitEap  county.     iJponTniesz ' s" rof usal'to  recognize  her  claim  or  to  pay 
her  any  money  for  its  relinquisliment ,   this  suit  was  brouglit  by  the_Siidr 
lers  and  V/orthington  a::d  Blake,   who  were  their  grantees  under  deeds  made 
since_IIrs.  Sadler^  arrival   in  the  ctate,   and  therefore  subsequent  to  ^ 
the  conveyances  to  IJiesz. 

Considering  these  facts,  vAiich  were  admitted  over  the  strenuous  ob- 
jection of  the  respondents,  tl^e  complaint  in  the  case  was  peculiar.  Ihe 
plaintiffs  are  named  simply  as  Eylvanus  ITo  Sadler,  liiry  Eo  Sadler,  Y/il- 


liam  TJorthinstou  and  George  D.   Blake,   and  its   only  allogationc  are  that 
the  plaintiffs  are  seized  in  fee  simple  as  tenants  in  common  of  the 
property   (doecribing  it);   that  they  are  entitled  to  the  possession  of 
said  land;   and  that  defendants  are  in  poEsession  and  unlav;fully  vathiiold 
the   same  from  them,   these  allegations  being  barely  sufficient   to  support 
a  naked  action  of  ejectment  based  upon  a  purely  legal  title.     No  alle- 
gation whatever  was  made  of  the  marital  relation  existing  bet-.-een  Sac^der 
and  his  v/ife  at  the   time  he   acquired  this  land,    the  pleader  assuming 
that   tli2  various  deeds  made  by  Sadler  vare  absolutely  void,   and  that 
under  the   allegations  of   the  complaint  proof  of  tb3  irarriage  relation 
between  the  Eadlers  could  be  made  to  show  the   legal  title  In  '.'vs.  Sadler 
as  well  as  her  husband. 

The  appellants  urge  numerous   objections  to  the  findings  of  the 
court  on  the  ground  that  tliey  v.ere  not  justified  by  the  evidence,   and 
it  may  be  conceded  that  some  of  the  minor  and  unimportant  facts  vere  not 
sustained  by  any  evidence,   bat    /e  find  tliat  all   of  the  material  ones 
were  sustained  by  some  evidence,   arA,   althou^  Cie   testimony  on  these 
points  may  have  bean  v/eal:  or  contradictory,   v^e  are  required  by  tte  stat- 
ute to  treat   them  as  a  special  verdict  of   the  jury,  wMch  is  not   to  be 
disturbed  fcr   suih  reasons.     The  main  question  of  the  case   is,   vhether 
the  judgment   is   suf tainable  upon  any  conclusion  of  law  deducible  from 
the   facts  found,    and  we  ehall  confine  the  discussion  to   that  point. 
Eie  court  belov;  found  that  Sadler  v/as  estopped  by  his  representations 
and  warranties;    tliat  ilrs .  Sadler  was  estopped  by  her  remaining  away  from 
the  territoi^r.    v/liereby  knowledge  of  her  relation  to  her  husband  by  people 
v/ho  \vere  likely  to  deal  vA.th  him  was  suppressed,   and  by  her  silence  when 
she  might  have  let   it  be  Icaown  in  the  community  vliere  Sadler  resided 
that  he  vias  a  married  man;   and  that  Blake  and  T/orthington  received  their 
pretended  deeds  after  the  estoppel,   and  with  laiowledge  of  the  rights  of 
iiiesz. 

The   several  members  of  this  coiort  are  unanimous  that   the  judgment 
rendered  by  tlie  coirrt  below  should  be  affirmed;  but  a  constitutional 
majority  are  unable   to  agree  upon  any  one  ground  which  should  be  as- 
signed to  sustain  it.     Ve,    -therefore,   order  the  affirmance  and  proceed 
to  give  our  several  reasons  for  the  action  taken. 

Appellants  maintain  that  there  is  no  estoppel  against  an  attack 
upon  a  void  instrument  even  by   the  man  who  e>:ecuted  it,   and  that,   tisre- 
fore,   the  court  erred  in  its  conclusion.     They  lay  it  down  that  the  legal 
title  to  community  real  property  is    in  both,  husband  anj?.  v,lfe,    or  that 
mere  correctl;'  speakiiiig  it   is   in  the  coramunitjv,  which  is  composed  of  the 
husband  and  wife,  and   tliat  until  the  coramun.itr  acted  there  --as  no  deed 
but  merely  a  void  paper.      The  supreme  court   of  the  territoiy,    in  Kolyoke 
v.   Jaclffion,   3  Y/ash.   T     235   (3  Pac.  Rep,   841),  certainly  gave  countenance 
to  this  proposition,    in  its  a-:ialysis   of  the  act  of  1879.     Whether  that 
decision  was  influenced  to  anj^  e::tent  by  the  decisions   in  other  states 
or  not  I  am  unable  to   say,   as  none  are  cited;  but    it  ic  true  that  at 
least  one  case,   Zimpelman  v.  Kobb,    53  Tex.   274,    is  found  to  fully  support 
the  substa:ice  of  ths  theory  that    £ie  title   to  community  real  estate  is 
equal  in  husband  ard  v/ifa,    for  the  court  ttere  said: 


8£. 

"Under  liio  la\/  as  na.v  settled  l>y  tie  former  decisioiis  of  tliis 
court,   tte   titles  of   tlie  ltuE"baiid  a;id  -.vife  to  the  conraunity  property  are 
eq-ual,   tlB  oaly  differGUce  beiag,  that  during  the  continuance  of  the 
marriage  relation,    tte  hurba-od,   as   the  head  of  tl:e   fa:nily,  has   t:^  man- 
agement, control  aiid  disposition  of  the  property  for  their  joint  bene- 
fit." 

But  ZiiiQ?elma:i  v.  Hobb  is  not  no-v  sustained  by  the  suproEB  com-t 
of  Texas.     Mv;ards  v.  Bra.n,   68  Te::.   329    (4  5.T7.  P.ep.  380),  held  that 
the  legal  title  of  the  la:i:d  conveyed  to  either  husband  or  v/ife  \vas  in 
that  one  to  whom  the  conveyance  rail,   although  beneficially  the  property 
belonged  to  bo  Si;   ai:d   tliat  the  beneficial   interest  of  the   otl:ier  spouse 
T.'as  an  equitable  interest  only.     Zinipelmaii  v.  Robb  is  disposed  of  -./ith 
tlie  reijiark  that  if  it  had.  not  appeared  tloat  tae  purchasers  from  tha 
husband  had  Imov/ledge  that  ho  \ras  a  married  man,   aixL  ^vere  therefore 
bound  to  talB  notice  of  a  conveyance  from  his  v.lfe,   a  different  case 
v»uld  have  been  presented,  and  a  different  luliiig  called  for.     Other 
Texas  cases  to  the  same  ic^iort  have  follovved  Edvards  v.  Brovm,   all  of 
vliich  are  noted  in  the  latest  case  from  there,  wliich  is  Patty  v.  "iddle- 
ton,  82  T©::.   586   (17  S.W.  Rep.    910).     This  case  enters  more  formally 
into  a  discuscion  of  the  question  of  title  to  community  property  than 
any  of   its  predecessors,   and  the  conclusion  is   arrived  at  again  that 
Edwards  v.  Brovn  Has  correct,  oven  to  tiie  e::tent  of  holding  that  after 
the  death  of  the  v.lfe  the  husband  could  convey  a  good  title  to  innocent 
purchasers  vdthout  loiowledge  of  his  having  load  a  wife,   as  against  his 
children.     To  the  csme  effect  is  ^ootors  v.   Feeny,    12  La.  An.  449,  where 
the  wife,  under  a  statute  giviiig  the  husband  absolute  povrer  of  disposi- 
tion of  community  real  estate,   sold  la:id  the  title  to  vAiich  was  conveyed 
to  her, 

I  find  in  Holyok©  v.  Jacteon,  supra,  Andrev/s  v.  Andrev-B,  3  Uash. 
T.   286    (14  Pac.  Rep.  68),   and  Koover  v.  Chambers,    3  TJash.   T.  26    (13  Pac. 
Rep.  547),   the  element  of  knowledge  on  the  part  of  the  person  contract- 
ing   with  the  husband  present  in  each  case,  which  was  sufficient   to  sus- 
tain the  cLecisions  macLe,  under  our  statute  prohibiting  the  husband  alone 
to  convey.     But  wlsn  I  regard  our  act  of  1881  ixrely  as  a  statute,  vAth- 
out  attempting  to  malce  philosophical  distinctions,   the   theory  of  a  joint 
or  conmunity  ownership  of  tlie   title  is  not  supported,     noviaere  in  tliis 
act,    or  in  any  law  ever  passed  in  the    territoiy  on  the  subject,    is   there 
any  attempt  to  define   or  constitute  a  "cocsmnity''  or  to  declare  of  vfcom 
or  viiat  it  shall  consist,    or  what  its  rights  or  liabilities  are;   with  the 
single  exception  of   its  use  with  fii3\;oid   "debts'  the  woid  community  is 
every\,iaere  emploj'-ed  mei-oly  as  a:i  adjective  to  qualify'  "property,"  just 
as   the  v;ord   "separate"  is  er^ployed  to  qualify  other  pi^operty.     Previous 
to  1679  tlTe  \/ord  "common '  \/as  used  v5iere  now  v/e  have  the  word  of  four 
syllables.     How  this  act    (Code  of   1881,  Sec.   2409)   says  tliat  property^ 
•fecquired"  after  marriage  by  either  husband  or  v.lfe  cr  both,   is  commuiuty 
property.     Eiere  is  no  reco.^nition  in  tins   lan-guage  of  a    'connunity" 
vliich  can  "acquire;"  not  even  v,hen  both  husband  a:id  vafe   "acquire."     In 
Iflwards  v.  Bro-.;u,   supra,   it  \ra.s  said  on  this  point: 

"In  passing  that  act,   the  legislature  did  not  have  iuic\er  consider- 
ation the  fonn  of  tlie  conveyance;  and  upon  tliat  subject  no  provision  is 


6ft. 

there  made.     If   it  had  provided  thai  all  property  convc3;ed  to  either 
hushaiid  or  wife  dvrir-s  riiarriage  should  "beloug  to    the  commoii  estate,   this 
would  have  placed  tlie   legal  title  in  "both.     But  no  STXh  laiiguase  is 
used.     Such,    in  fact,    is  not  the  meaning  or  effect  of  the  section." 

In  some   of  the  states   there  are  statutory,   a:xl  in  others  constitu- 
tional, provisions  forhidding  the  husharji  to  sell  the  homestead  vath- 
out  tlTg   joinder  of  the  v;ife,  but  sTxh  provisions  liave  never  "been  con- 
sidered to  uaiK  a  partnership,   a  corporation  or  an  "entity"  of  the  hus- 
bsnd  and  vafe,    or  to  vest  the   title  otherv/ise  than  in  the   one  to  vhom 
it  v/as  conveyed. 

Our  o\vrn  legislature   in  1891  put  an  inferential  construction  upon 
this  question  of  legal  title,  "by  the  act  of  larch  Sth,  as  follows: 

"Section  1.     VZhenever  any  person,,   married  or  single,  having  in 
his  or  her  name   the    legal  title   of  record  to  any  real  estate,   shall  sell 
or  dispose  of  the  same  to  any  actual  bona  fide  purchaser,   a  deed  of  such 
real  estate  from  the  person  holding  such  legal  record  title   to  such 
actual  bona  fide  purchaser  shall  be  sufficient   to  convey  to,   and  TDst 
in,   such  purchaser,    Gic  full  legal  and  cquitablo  title  to  such  real  es- 
tate frco  si'A  clear  of   any  and  all  claims   of  aijy  an.d  all  pcrsonc  vhat- 
EOGvcr,  not  appearing  of  record  in  the  auditor's  office  of  tho  county 
in  Yhich  such  real  estate  is   situated. 

"£cc.  2.     A  husband  or  ^;dLfe  having  an  interest  in  real  estate,  by 
virtue   of  the  narriago  relation,   the   legal  title   of  rccojxL  to  which 
.real  estate   is  or   s]iall  bo  hold  "by  the  othcsr,  may  protect  such  inter- 
est," etc. 

Ihic  was  no  declaration  that  th3   legal   title  chould  be  taljcn  to  bo 
in  the  person  to  v.hom  tho  conveyance  ran,  but  a  recognition  of  the  fact 
that  legal  title  existed  in  the  grantee  named  in  the  coyvenance,  and 
that  every  interest  existing  or  claimed  by  any  other  person,   whether 
husband,   wife,   cestui  que  trust,    or  v/hat  not,   was  an  equitable  interest, 
as  all  courts  liave  held  it   to  be  under  all  foims  of  statute i^jr  or  common 
lav/. 

Our   system  of  conveyancing  and  recording  \70uld  f  ua-nish  aii  addi- 
tional strong  train  of  argument  in  favor  of  holding  tlic  deed  of  tho 
holder  of  the  record  title   to  real  estate  to  an  iimoccnt  purchaser  with- 
out notice  good  as  agairrt  all  claimants,   for  the  purpose  of  that  system 
is   to  render  safe  aiad  certain  ever;^'  investment  made   in  la:id   iJi  this 
state  by  one  who  pays  dU3  heed  to  tho  public  records,    and  has  no  actual 
notice   of  antecedent  conveyances  or  equitable  claims.     P.itchio  v.   Grif- 
fiths,   1  V-ash.  453   {25  Pac.  Hop.   341). 

Ihis  statute,    as   I  tate   it,   -■;aE  enacted  for  the  purpose  of  enabling 
the  wife  to  protect  herself  against  recld.ers,   improvident   or  fradulent 
sales  by  the  husband.      It  prohibits  all  sales  made  by  him  alone,  but  no 
penalty  is    attached,   aJid  no  declaration  is  made   that  his   sole   deed  shall 
be  invalid  or  void.     He   is   simply  prohibited,    and  doubtless,    as  between 
him  aiai  her  an-d  every  person  taking  his  deed,  while  fairly  chargeable 


^ 


with  notice  of  hie  married  conc'.itionE,   she  would  "bo  entitled  to  relief. 
But  iG   it  to  'be  adjudged  that   it  v;ac  the  intention  of  thic   law  that  u-i- 
der  all  circumctaxeG  a  purchaLer  in  soocL  faith  from  the  hucTsand,    or 
the  wife  cither,    if  the  l0j,-al   title   should  be   iu  her,    ic  tho  warrantor 
of  Me   o\7n  title,   and  muf:t  loco  everything  on  the  hazard  that  his  grantor 
ic  not  a  married  peroou?     It   it  to  "bo  custaiuod,    in  cc^uity,  as  a  cover 
for  frauds:   a:x:  cwindlcrc  T,;ho  muct,    ir.  the  nature   of  tliiasc,  be   either 
men  or  women  capable    of  being  Lisarried?     Ca:i  tliic  hucbaud,   mth  the  lie 
that  ho  ic  unmarried  on  his   lips,   a^  tlie  money  of  Z'Aozz  in  hie  poclaet, 
turn  aroui:d  a:id  rue   to  recover  the  la:ixl   vhich  he  cold?     Can  the  woman 
who  hac  cu2h  a  hue  band  maintain  the-t  every  concidcration  ic  cub  ordinate 
to  her  rightc,   arjd  in  such  a  suit,   not  only  protect  hercelf,  but  talco 
away  from  a  purohacor  T^ao  had  boon  purpoccly  throv/n  off  hie  guard  ac  to 
her  e::ictencc,   the  property  v;luch  under   all  other  circumctancec  would  be 
decreed  to  be  liic?    Surely  not,  ualosc  there  be  corae   imperative  reason 
thorofor. 

Several   of  the  decisions  of  tliic  court  are  cited  by  appellants ,  but 
thoy  arc  not   in  point.     LitteLl  c';  Smytha  I'-fg*  -Co.   v,  I'.illcr,   3  ^iach.  480 
(28  Pac.  Rep.  1085),  hold  that  a  husband'c   interoct  in  community  proper- 
ty could  not  bo  sold  to  satisfy  a  mechanic 'c  lien,   the  holder  of  -.vluch 
Iniovdng  of  tte   ezictcncc   of  Ih-r.   "ill or,  wac  hardly  vi-^-  in:iocont  purchaser. 
Ryan  v.   Per^usson,   3  Vfach.  356    (26  Pac.  Rep.   910),  held  that  tYe  entire 
estate   in  comrauiiity  realty  riMst  be  cold  to  pay  debtc ,    on  tlie  decease  of 
husband  or  wife,   and  that   it  v/ac  so  into::d.ed  -.vhere  the  adminit  trator'c 
deed  mentioned  only  th:   interest  of  t]ie  deceased,     ti  Brotton  v.  Lanscrt, 
1  Hash.  73   (23  Pac.  Rep.   688),   Lai:gert  was  a  judgaent  creditor,   not  a 
purchaser  either  iiu^ocently  or  otJaerwisc,   no  sale  had  been  made ,   a;id  the 
vdfo  wac  lie rr elf  tlie  plaintiff. 

Holdii:!g,  tlierofore,  as  tlTis  examination  of  the  statutes  aiid  the  bet- 
tor authorities  impel  us,  that  the  interest  of  lire.  Ladler  was  an  ec^uit- 
able  and  not  a  legal  interest;  that  Sadler's  deed  vrac  not  void,  but  void- 
able only;  and  that  tl:e  doctrine  of  estoppel  was  free  to  operate  against, 
and  justly  applicable  to  all  of  the  appellants,  I  can  only  vote  to  affirm 
the  jucigraent  of  the  court  below. 

Hie  lav.'  ic  caroful  of  the   innocent  purchaser,   aid  neither  the   letter 
nor  the  spirit  of  the  act  in  question  calls  tipon  us   to  overturn  the    or- 
dinary rules  of  coinmon  honesty  which  a  regard  for  him  has  built  up,   in 
order  to  declare  void  a  conveynnce  wluch  the  statute  does  not  so  denouiice. 
It  ic   the  duty  of  tlie  undiv arced  husbaad  and  vafe  to  live   together;   the 
lav/  contomplatec  that  they  vdll  do  so;   and  the  businccG  community,   all 
of  whom  may  bo  sought  ac  purchasers   of  real  property,  have  a  right   to 
expect  that  they  will  not  place  thancelves  so  widely  apart  as   that  common 
reputation  vail  report  them  unmarried.     On  the   other  hand,    I  tliink  it 
must  be  condeded  that  a  large  measure   of  responsibility   is  throvrn  by  our 
statutes  upon  the  purchaser  in  the  way  of  maki:ig  inquiry  as  to  the  con- 
dition of  his  grantor,  wliich  a  mere  e::ajiiination  of  the  public  records 
would  not  caticfy;  but  a  reasonable  effort  in  the  direction  of  inqairy 
under  all  the  circumstances  must  be  taken  as  sitfficient,   else  no  title  can 
be  safe.     The    respondent   in  this   case  fully  satisfied  the  rcquirctxmt  of 
the  law  in  this  respect,  and   I,   thorcfore,   coincide  v/ith  the  superior 


8?» 

coxirt  on  this  grouad  also. 

Andors,  C.  J.  concur c. 

Scott,  J.— I  concxa-  in  the  recult,  beoaucG  I  think  -Qic  -.Tifc   ic  gs- 
topped  under  tho  peculiar  circumstaixec   of  ttiic  case  from  maicing  any  clain 
to  the   laiirL  in  c^uesti on  an  againct  a:i  innocent  purchaser-   ard  the   other 
appellants,  hy  their  direct  actD  a:-ji  3aiov;ledge ,,   are  Taoxm-d  "by  the  deeds 
executed  "by  Sadler  to    the  rccpondo:4s.     I  also  doubt  whether  the  ctatute 
relating  to  the  dicpocal  of  coinrnunity  la:n?-C  by  the  huirbsnd  chould  bo 
held  to  apply  v;here  the  wife  did  not  become  a  resident    of   thi  c  ctate 
prior  to  the  convenaiice. 

Hoyt,,   J.    (concurring). — In  concizrrii:ig  in  the   affirmance  of  the 
judgment  in  this   case,    I  doc  ire  to  add  only  a  few  i/ards  to  what  has  been 
said  by  Judge  Stiles  in  Mr  opinion.      I  a^ee  with  much  that  has  been 
ftiereiu  stated,  but   I  am  uiiable  to  agree  with  that  part  of  cuch  opinion 
in  wliich  it   ceanc   to  be  held  that   the  spouse  in  -vjhose  name  connunity 
property  is  standii:g  can  dicpoc:e   of   the  came  without  Ihe  other  e2)OUSO 
joining  in  the  conveyance,  even  although  the  two  spouses  are  living  to- 
gether as  husband  aiici.  v/ife.     To  thus  hold  ceemc  to  me  to  be   in  direct 
conflict  v;ith  the  statute  upon  the    subject.     Stash  statute,    after  pro- 
vidi.jg  \;hat  property  shall  be  community  property,  providcc  tliat   the   same 
chall  not  bo  c  arveycd  czrcepting  bjr  the   joint  deed  of  the   two  spouses. 
Such  statute  -.^as,    in  my  opinion,   passed  maiiily  in  the  interest  of  wives 
and  for  their  protection. 

It  was  the   intention  of  tlxi   legislature  by  cnch  enactment   to  pre- 
vent a  husbaiid  from  dicposii:ig  of  tho  real  ectate  of  the   ccmmunity  in 
fraud  of  the  ri^tc  of  the  wife.      If,  however,   we  hold  thereunder,   as 
stated  in  the  opinion  abare  referred  to,    it  seems  to  me    that   it  will 
open  the   door  viiich  the   legislature  thus   intended  to  close.      If   it   is 
held   tltat  the  husband  v/hile    liviiig  v;ith  his  wife  ca:i  alone  convey  such 
property  standing   in  his  name   to  any  one  pmrchasiug  the  same  in  good 
faith,  without  laiow]edgc   of  the  e::isterjce  of   the  wife,   tliere  will  be 
nothing  to  prevent   a  fraudulent  arrangement  as  between  the  husbaiid  and 
a  purchaser  by  v;luch  it  mil  be  made  to  appear  tlmt  such  purchaser  acted 
in  good  faith,  v;hen   in  fact  he  liad  full  knowledgG  of  all   tlx  circum- 
stazces.     A  designing  and  unscrupulous  husband  \-rould   thus  be  enabled  to 
nullify  the  intention  of   Sie  legislature. 

If,   however,    it    is  held  tlaat  wlien  property   is   acquired  by  tite  hus- 
band,  not  by  gift,  devise  or  bequest,   it  at  once  becomes  the  property  of 
the  coramunitj/  simply  by  reason  of  the  fact  that  he  has  a  wife,   regardless 
of   laie  question  as  to  v/hethcr  or  not  he  aid  his  wife  are  livi;-ig  together, 
then  the  door  is    open  to  such  frauds   on  the  i:a,rt  of  a  designing  husband 
and  v/ifo   that  public  policy  demands  that  some  other  constrixtion  of    file 
statute  should  be  found,   if  possible.     Once  construe  the   statute  in  this 
vay,   ai.d  it  becomes  poscrble  for  a  husband  azd  wife  by  their  fraudulent 
acts   to  allow  the  husband  to  i:  o  represent  himself  before  the  community 
in  which  he  resides  that   it   mil  be  generally  believed  therein  that  he 
is   a  single  man.     And,   as  a  conseqiaouce  of  c re h  belief,  be  enabled  to 
convey  all  property  standii^g   i:i  his  nsme  as  such  single  man.,   and  then  by 


y>^  ^^z^^.€>-^js^  J^^^'>''''t.-^^  y 


//c}'-      ^ 


y  ^i-^^-t-'-i^-^^^^^V 


c:L. 


"br insane  the  v/ifo  upon  the  groimji  ant?,  shov/ing  that  dtring  all  this   time 
tliey  vrorc   in  fact  hucT3a:--d.  and  -.vife,  avoid  every  troiacfer  of  real  estate 
made  "by  him.      In  thie  '.7ay  they  could,  "by  the   invcctmcnt   of  a  single 
thoucand  dollarc,    in  the  courcc   of  a  few  ycarc  have  procured  the  title 
to  cuch  a  lar^G  nurnlicr  of  pieces   of  real  estate  to  have  Taoen  conveyed 
to  the  husband  tliat  wlion  -ch:  conveyances  from  him  came  to  be   cot  aside, 
the  community   w-ould  with  the   invcstiiKint  of  s-uch  single   thousand  dollarc 
find  til  cancel  vet-   in  Cie  pocsoscion  of  property  worth  probably  hundreds 
of  thousands . 

I  caimot  believe  that  the   legiclature  intended  to  provide  machinery 
for  cuch  fradulexit   transactions.     I  tliini  that  in  regard  to  the  holding 
of  property  ac^uirod  in  the  \;ay  specified  by  the  ctatute,   the  legisla- 
ture  intended  to  create  a  community  as  betvADen  the  husband  a:id  wife  for 
the  purpose  of  holding  such  property;   tliat   in  the  conveyance  of  such 
property  to  oitliur  ^.'pouse  a  bare   legal  title  therein  is  vested  in  such 
spouse,  but   that   tlae  entii'c  beneficial   interest  is  vested  in   ftiG  com- 
munity,   and  a;i  absolute  prohibition  placed  upon  tix   spouse   i::  vhose 
name  the    title  chances   to  staid,   \7nich  prevents  a:iy  title  vhatever  being 
JiasEcd  by  that  spouse  alone  so   long  as  tlx;  community  exists . 

This  malccs  it  necessary  to   investigate  the  nature  of   tlii  s  beii^g 
wJiich  we  call  a  comraunity  under   the  legislation  in  relation  tlsereto, 
Ac  bet'.veen  tlie  tv.o  spouses  such  community  c::ists  v;henever  they  occupy 
the  relation  of  lei"al  hucbazid  and  ^/ife,  re^rdless   of  the   fact  as   to 
whether  or  not  Ihey  are  living  together.     But  sixh  relation  alone  doos 
not  constitute  the  husband  and   mfe  a  coiTsnunity  as  between  thorn  and 
third  persons  \fho  have  no  IniowlcdgG  of  the  existence  of  such  relation, 
or   of  any  facts  vhich   should  have  put   tlien  upon  inquiry  as   to  \/hat  wore 
thj  relations  of  tlie  spouijec   or  either  of  them.     There  must,    in  rs;;  opin- 
ion,  be  snch  an  assertion  of  Ms   or  her  rights  by  each  of  the  spouses 
as  are  ordinarily  and  reasonably  to  be  e::^ected  from  the  fact  of  the 
existence   of  such  relation,    or  else  tho  comiiiu:iity  does  not  exist  so  far 
ac   tho  public  having  no  laiowlcdge  of  the   legal  relation  of  husband  and 
vafe  are  concerned.     If  either  of  tho  spouses  sees  fit  to  allow  the 
other  spouse  to  act  and  represent  him  or  herself  as  a  single  x^crson, 
Uiidor  sich  circumstancoc  and  for  siich  a  time  as  v/ould  induce  persons   of 
reasonable  prude'nce,  -..Ith  whom  such  spouce  associated,   to  believe  that 
lio   or  sl-E  was  in  fact  a  single  person,   then  I  think  that  so  long  as  this 
state  of  facts  onirtc   there  is  no  suJh  community  existing  bctrroen  the 
spouses  as  was  contemplated  by  the    legislation  upon  the  subject  of  the 
conveyance  of  community  property. 

It   ic   tris  tlut  such  a  construction  of  flie   statute  will  enable  a:i 
u:iccrupulous  ]msba:id,  by  abandoning  a  vdfe  and  concealing  his  where- 
abouts,   to  acouire  a:xl  dispose  of  property ,    in  fraud  of  her  rights,   vriLth- 
out  any  fault  on  hor  part.     But   if  either  a  ncnbor  of  the  community  or 
a  third  person,  -v/ithout  fault  on  the  part  of  eitter.  Must  suffer  by 
reason  of  the  acts  of  such  comimmity,    or   of  either  member  thereof,    I 
think  that  good  conscience  and  well  ertabli^Ziod  rules  require  that  it 
should  be   tl-^  member  of  tl-c  camiiiunity.      To  a  certain  extent  each  member 
of  thjj  c  cmmunit  7  Lius  t  be  held   to  be  an  age  id;   of  ths  commuiiity,   a'.id  of 
the   other  member,   and  it  could  not  liave  been  the   intention  of  tic   legis- 


\..<c-*'-i-x.'<y-^* 


,,,-«'^^i»^V'<.'t/        ^ 


^-     _^'^-<3    ^^,i»e-^-e>'^^     ~> , 


•y^' 


/ 


-y^-^'^f^ , 


.-■'        C^  '~ 


89, 

lature  to  liavo  abcolutoly  protcctod  tlie    i-jnocent  member  of  cuch  cornnun- 
ity  against   tiiD  acts   of  t>j3   other,   and  yot  left  innocent   third  perconc 
without  any  protection  v;hatovcr.      Hie  public  have  a  right  to  demand 
tliat  there  chould  "be  comethiiiG,'  more  than  tho   lej-al  relation  of  hue  hand 
and  vafe  hcf a-c  it   is  hounc".  to  recognize  a  community  hetv^ien  the  per- 
sons occupying;  such  relation.     Tlae  legal  relation  of  hujihand  and  wife 
may  ercict  and  be  Icept  a  profound  secret,  un:aio\vu  to  the  nearest  rela- 
tives or  most  intimate  asEOciatoc   of  both  the   cpourec.     Such  marriage 
relation  v^uld  create  a  cor.Tmunit3'-  as  "betvyeen  the   spouses,   so  far  as 
tlieir  relation  to  each  other  v/ac  concerned.     But  so  lon^'  as  it  was  con- 
cealed from   tie  public,    it  vould  I-jave   tl^o  right  to  deal  mth  each  tpouce 
as  a  single  person  in  relation  to  the  property  standing  in  their  respect- 
ive names. 

In  my  opinion,    ro  far  as  tlx  public   is  corj^erned,   such  a  relation 
cannot  be  held  to  orcist  v;itliout   tlie  caicui-ronce  of  two  facts:     First, 
Tne  marriage  relation  bot-.veen  the  members   of  the  coranunity;   and,   second, 
some   assertion  of   tae  rijitc    incident   to   such  mai'riage  relation.     Until 
there  iiac  been  some  avov;al  of  tl:e   relation  bet\/een  them,   the  community 
does  not   exist  at  all  so  far  as    tine  public    is  concerned,    and  whenever 
either  member  of  thj  community  ceases  to  assert  his   or  her  rights  under 
tlE  marriage  relation  for  such  a  time  and  under  such  circumstances  ac 
to   induce  the  public  generally  to  believe  that   the  other  spouse   is    in 
fact  a  single  person,    then,   as  betvrocn  the  spouse  so  neglecting  the  as- 
sertion of  his    or  her  rights  and  the  public,   the  community  does  not 
exist. 

The  facts-  in  t3ie  case  at  bar  shov;  clearly  tliat  there  has  been   srch 
an  omission  to  assert  airy  rights  by  virtue  of  the  marriage  upon  the 
part  of   the  i-.-ifo  as  vrould  lead  the  most  prudent  person  dealing  with  tho 
husband  to  believe  his  assertion  that  he   vas   in  fact  a  single  man.     It 
follovffi  that  as    to  those  dealiiig  v/ith  the  husbaixL  as  a  single  person 
neithsr  Cie   communitr-,   nor  cither  member  thereof,  can  assert  its  exist- 
ence  to    tho  detriment   of   tliose   thus  dealiiig  v/ith  tlic  husband. 


Dunbar,   J. — I  concur   in  the  result  for   tho  first  reason  assigned 
above  by  Judge  Scott.     The   testimony  plainly  proves  to  he    that   there 
was  no  actual  coiT(munit;r  existing,    such  as   is  contemplated  by  the   law, 
and  that  I  Irs.  Sadler  b-y  her  o\m  acts  aided  Sadler  in  perpetrating  a 
fraud  iiipoiTiTiesz ,  'and  that  th¥  shov/irg  the^r  made  after  the  sale  of 
living  Together  was  only  a  part   of  the  scheme  to  d  of  ram  ,_and^  s  he  should, 
^lerefoVeV  b"e"'est"^^ed"~frbm'  setting  "up  her  claim  against  an  i:i;ioce:it 
pur^i. as erl^but~"l" cannot  concur 'iTiT^the  opinion  of  Judges  Stiles  and 
Anders . 


■:^^<-<»<2^«Xw<S^ 


eo. 


OSQKR  mJHIT  AKD  SPATTO  H.  ^'/HEELER,  RecpoiidentG, 
7.  CHATJZS  IIILLER  et  al.,  Api:ellaiits . 

(5  ^ach.  405). 

Appeal  from  Superior  Conrt,  Pierce  Countyo 

The  opiiiion  of  tlio  court  "i/ac  delivered  by 

Scott,  J.~2h.io  v/ac  a:i._acti^:_;^ "broUi^t  to  quiot  title  to  certain 
lalids  ill  Picrco  oouiity.  JShs  clef e:~idilit  Claaxlot'Tliller  had  e::ecuted  a 
deed  come  year 'J  befoFo  purportiii^  to  cbuvcy  caid  laiidc  to  certai:rpart_iec, 
scA  tlxi   came  v/ero  deeded  by  tlx-ra  to  otlicr  ^'ra:itecs,^  a:^!  fiioally  to  tho 
IsraiTitirfsl    Taller  had  ropre'sonted  himself  as  a  sir-gla  man  at  the  time 
"ho^exoTrttted  the  doed^ut   the"  c]j?feada:;tjgli2abetli  lallcr  subsequently 
_appearod,  claiiniiis^^to  be  hie  v/ife,.  a;ad  that  tho  laudc  were  commu:iity 
laijdE,    a:icL    Ciat  zlruj   I:iad  a  coranu'iity  iiitorjrt  therein,     './hereupon  the 
plaintiffs  b^ou^it  this  action. 

ThB  defcnda:;t  Charlec  Ililler  originally  lived  at  Harris  bur  j,  Penn- 
sylvania,  at  which  place,    in  tho  year  1858,  lie  -.vac  married  to  the  de- 
fendai:t  Elizabeth  Ilillor,     He  war-  Iciovrn  t>-Gre  by  tliD  name  of  Conrad 
r.iller,  his  name  being  Cliarlec;  Conrad  riiller.     Six  children  vrero  born 
to  them,  all   of  v/loora  v.xji-e  living  at  the  tine   of  the  trial.     From  Harris-' 
burg,   ::iller  aiid  hie  family  moved  to  Pittsburg  in  Ja::U3,ry,   1873.      In  the 
spring  of  1874,  Elizabeth  ililler  tool:  tlieir  childre::  and  returned  to 
Harrisburg,  Ililler  continuing  to  reridc  at  Pittc;burg  i:UT.til  some  time 
durir^  1877,   whin  :Te  removed  to  Califoitiia,   and  remained  there  ui-.til 
1879,  v/hon  he  moved  to  Oregon,   a::d  from  there   to  V/ashington  Territory, 
a;:id  ha  has  resided  hero  siixio  the   spring  of  1880,     The  facts  concerning 
the  separation  of  tlie  defendants  Cliarlec  anjf.  Elisabeth  Ililler,   or  r;hat 
facts  led  up  to   it,  do  rx)t  fully  appear  in  tlio  testimony.     ::iller  says 
he  was  advised  by  a  physician  to  allow  his  vife  to  rctiirn  to  Harrisbiirg, 
because  sloe   -.Tas  homocicl:^   and  that  ho  did  so  xjpon  that  account^.     He 
_  testifiod  thi.t  thay  laspt  nyi   t'pir  rolatAOns  as  husbai:d  and  •.vifo^until 
1670,   although  he  had  removed  from  Pen:isylva:iia  in  1877.     \7hen  aslced 
v/lv  tlx  relations  ceased  at  tliat  time,  lie  taid  hG  had  been  iiifoi-mcd 
tliat  she  v/ac  dead,   e^id  he  dii  not  Iniow  differently  until  llay,   1890,  wlien 
he  learned  that   it  vcc  her  mother  ^-/Itd  died.     It  seems  tliat  no  corres- 
pondence was  kept  up  betv;ecn  the  pai'tias,  a:id  Cierc   is  every  indication 
that   they  rega^-ded  thcii-  sepai^ation  as  a  permanent  one. 

In  Ootdber,   1685,  Ilillcr  was  i-narricd  in  giis  territory  to  one  I'ar:,- 
Smith,  "n^'-id  hag  owr^  chiiKl  ]>y  tmp  uiin-in g" '      H"  I'^riir  fyi^-^-^fiiT^'itly  jiivo^ed 
from  this  vjoma;^,    iu  tlic  district  court  holdi::g  ter.ns  in  a:id  for  Pierce 


count::,   and  in  Pebnary.   1686.  he  remarried  her.     She  dix.  priorTo~Eie 


coiameixjement  ox  tiiic  action. 

"IJhen  Ililler  left  Peini2ylva:aia  for  tho  Stat>j   of  California  he  toot 
twenty- -scv^n  thousand  dollars   in  raoiiey  with  him.     Ho  lost  thirteen 
thousand  dollars   in  California,   aid.  met  with  some   losses  thereafter. 


91. 

/aid  it  appears  by  hie   ovci  tectiraouy  that  none  of  thic   tvfentry -seven  thou- 
sand dollars  was  invested  in  this    land,  l^it   that  he  purchased  the  cane 
with  money  he  earned  after  coming  to  Uachinston  Territory. 

The  circumstances  connected  with   ttiis  case  are  somevhat  remarkahle . 
They  are  highly  inconsistent  with   tlie  claims  of  dofondants  at  this  time, 
that   they  never  intended  to  ahandon  each  other,  "but  considered  themselves 
husband  and  wife.     Elizabeth  always,   3M  ho,   until  lie   learned  of  her  death 
as  he  supposed,    in  1679.     Tl-iere  is  nothing  to  show  that  Ililler  ever  had 
any  \rord  from  his  wife  or  family  after  he  loft  Pennsylvania,  until  some 
years  after  ho  liad  sold  the  la:idr   in  question,  at  wMch  time  lie   says  he 
requested  some  person  to  malsE   inc^iries  in  the  vicinity  v/ierc  they  had 
previously  resided.     Upon  such  incjiiries  being  made,  he  learned  that  she 
was  still  living.      It  does  not  appear  that  any  attempt  was  made  by  either 
0f_th'^  parti nr    tn   Wp    any,  trnp.lr  nf  np^ry^    nthey.,    or    tO   IQIOW  anything   of^ 
each  other's  subsequent  life  or  ei^isterco,  and  in  spite   cf  every  attempt 
now  to  mal<D    it  appear  that  their   separation  was  a  harmonious  one,   vd.th 
tliQ  intention  of  reuniting,    the  fact  still  stands  prominently  before  us 
that  they  regarded  their   separation  as  final. 

It  seems   that  hit  son,   Charles  A.  Ililler,   informed  his  mother,  Eliz- 
abeth,  of  the   sale   of  fiiis  Isiuf.   in   flie  fall  of  1890,   v/lereupon  she   statjed 
that  slE   vould  claim  an  interest  in  it  of   she  could  do  so,  and  from  this 
time  dates  their  subsequent  communication  with  each  other. 

The   law  waald  be  very  faulty  indeed  if,  under  the  facts   of  this 
cade,  a  claim  of  this  land  could  be  set  up  and  made  to  prevail  against 
innocent  purchMers,  a::d  the  plaintiffs  in  this  action  stand  in  that 
positipn.     ITo  neglect,   or  bad  faiGi,  ca:i  be  imputed  to  them.     They  had 
evcr^'  reason  to  believe  that  Ililler  vas  a  single  nan  at  tie   time  the 
conveyance  was  made,  aiid  had  no  Iciowlodge  v/hatevor  of  the  existence  of 
Elizabeth  Ililler,    or  of  his  liavins  been  married  to  her. 

Certainly  the  statutes  relatii-g  to  the  disposal  of  community  lands, 
and   the  community  property  laws,   v;cre  not  intended  to  protect  or  aid  the 
members  of  the  coiimunity   in  a;iy  trcaisaction  of  this  land,    or  1 0  place 
thaj  in  a  position  to  defraud  innocent  purchasers. 

I  endorse  the  viev/s  expressed  by  Hoyt,   J.,    in  his  concurring  opin- 
ion in  Sadler  v.  Hicsz,  ante,  p.  182,    in  tliis  particular,   and  in  this 
case   it  should  be  held  that  tl-c  community  relationship  between   these 
parties  was  not   in  existence  as  to  third  perrons  acting  in  good  faith 
at  t're  time  Ililler  came  to  V/ashii:gton  Territory,  oxid   that   it  v.a,s  never 
subseqicntljr  in  force  prior  to   tlie  conveyance  of  the  la:id  to  those  plain- 
tiffs.     Hero  tlTc  husband  and  wife  had  separated,  and  the  conmunity  re- 
lationship,   if  it  could  be  held  to  liave  ever  existed,  had  become  abro- 
gated or  suspended  by  their   ovn  voluntary  acts.     The  cond-uct  of  Eliza- 
beth in  separating  from  her  husband,  arji  remaining  separated  from  him 
as   she  did,  v;ithout  any  effort  or  desire  apparently  to  assert  any  of 
her  marital  riglits,    thus  placing  hir.i  in  a  position  vihere  he  could  palm 
himself  off  as  a  si:igle  man,  should  be  held  as   in  effect  saying  to  other 
people  havii:g  no  Iniowledgc   of   t^ie  facts,  tlct  they  mi^t  deal  with  him 
as  a  single  man. 


92. 


Under  such  circumBtaiices,   aii   in  accorcUmcG  mtii  equitable  prin- 
ciples, she  ic  estopped  from  nov;  asccrting  any  claims  to  the  larii    in  ques- 
tion as  against  these  plaintiffs. 

ThQ  decree  of  tte  court  below  ic  affirmed. 

.    Anders,    i2.   J.,   aixL  Hoyt,   J.,  concnr. 

Stiles,   J.>->-I  concur  for  the  reasons  given  in  Sadler  v.  Uiesz. 

Dunbar,   J.».-Havi:]g  wantonly  abrogated  the  marriago  relation,    I 
think  the  wife  should  be  estopped  from  claiming  against  those  who  v;er9 
led  by  her  ov:n  acts  to  deal  with  her  hustand  as  a  single  man.     I7^ there- 
fore, concxr  Tn^tiD  recul^i  ~~  * 


a^ 


1 


53. 


HERBERT  i.-DAI!S  AHD  MHIZL  F/v.mPITlT.T),  Appellants, 
V.  ALITvED'  L.   BLI^CK,  Recpondont. 

(6  T7ash.  528). 

Appeal  from  Sxjporior  Court,  Jefferson  'County. 

(Che  opinion  of  tlie  court  was  cLelivered  "by 

Dtcibar,  C  J. — 1!:iis   is  an  Sjotion  to  quiet  title  to  the  land  in 
controversy.      !nhe_  testimony  shov-'s  tte  common  source  of  title  to  Tdo  the 

"Seed  from" Christopher  and  j:in;^ie  A.  Semen  to  Geor-jo  Scraon,   dated  Decem- 
ter  26,   1637.     On  thp„4th  day  of  February,   1888,  _Eaid,-Gaorse_Semo;i, 
representing  himself  to  bo  a  cin:ilo  man,  which  rapresontation  v;as  also 

jnade  ia  the  deed,  oriccutcd  and  delivered  to  Ihoinas  J=  Corrigan  a  war- 
rantj'  deed  of  said  property.     It   is  stipulated,  hovvcvor,    that  at  t3£  timo_ 

""of  the  execution  of  the  deed  to  Cprrii;an  the  said  George  Senon  v/ac  in 
reality  a  married  raan,_liTri;ig JZith^his  wife.  The  stipulation  in  that 
respect  is  as  follo-wr: 

"That  on  or  abcut  Eepteinbcr  15,  1886,  said  George  Eeraon  aiid  Ella 
Semon  vrore  united  in  raarr jagc,  and  from  and  after  said  date  have  been 
hxisbaiid  and  wife,  and  at  all  tiraes  have,  resided  together  as  such,  and 
now  are  so  existing-  together." 

On  Febriary  6,   1888,   Conlgan  conveyed  the  la:-d  in  controversy  by 
T/arranty  deed  to  appellants,   a:id  0!i  'larch  10,  1890,    George  Semon  and 
Ella  Somen,  his  -.vife,   conveyed  the  caiue  laixl  by  general  '.varranty  deed 
to   the  respondent.     E.Q£;pondont  ansvrored  denying  appellant' c  title,   and 
alleged  affirmatively  that  the  deed  from  Semon  to  Corrigan  aad  the  deed 
from  Corriga:i  to  appellants  constituted  a  cloud  upon  his  title,   and 
prayed  that  ho  be  adjudged  the  owner.      0:i  the  hearing  of  the  cause  the 
court  adjudged  fro  deed  fx'om  Ssnion  to  Corrigan  to  be  a  nullity,',  and  that 
the  deed  from  Corrigan  to  appellants  conveyed  no  interest  in  the   land 
Bousht  to  be  conveyed,  and  adjudged  tip,t  the  respondeit  BlacS:  v7as  seized 
of  the  title  aaid  possession  of  the  premises  described. 

The  appellant's  contention  in  this  case,    it  seems  to  us,   is  based 
upon  a  misconception  of  what    tiiis  court  decided  in  Sadl;r  v.  Niesz,   5     j-- 
^<ash.  163   (31  Pac.  Hep.  630).     It  was  not  there  decided  that  the  legal        ''^liC^ 
title  jtQ_ community  real  estate  does  not  repose  in  the  community,  but_in        7 
"Oiat  spouse  -vhc  is  jjameg^Jn.  the  title  deed  ac  grantee.  ai:d  that  flie 
vgfo's  interest  if-  o-^iy  :v:^  Qr|^uitv-,ble   interest,  -y/ithout  'notice   or  knov- 
"i^-J^:  J^L'-'^if^^''^   "■  pu't'ehp.ser  -r^-Qm  thn  htisband  holdiiy   tho    legal   title  would 
acquire_^_onti£j5_\iELtaJaL,_.lcgal  .a:ad  cy^^  as  well.     Tliat  cecms^to 

Iiave~~b^fcn  tha  v  jev;  osrpresscd  by  tha  -jriter  of  fhc  opinion,  but   it  v^s 
not  conciarrcd  in  b'?  a  majority  of  fiie  coui-t,  and  has^  nevcr^Tcrrr-crnxincia- 
ted  as   the  opinion  of  this  court.     Tkio  ju5.;^cnt  in  that  case'  \vas~af firm- 
ed by  tr/o  members   of   giis  court  expressly  on  the  grou:-.d  of  estoppeX,  and 

by_orft    WP-rrihesr    n-i    «-^  -    j-rnir.rl    t^-^,- t    tll^JLtigj^llJlflJlL^'^"  '■  ''''      ^■^''     '-^^'-    ^1^ 'I^OSal 

Of  cogmunity_prnpnrty  6aoz  not  apply,  so  far  as   tl^'  public 'havings  no — 


94. 


taiovded^'o  of  thj  lejal  relation,  of  hUE"ba:id  oj-'A  ^-afe  arc  coixerr.ocL,  vtere 
£te_c  Qmmuiin: y  rolatiO'l  l!:;  uaicuglM,   or  v/lErc  thorG  has  boeii  no  such 


ascortion  of  tlio; 


j>ithx;rof  CiG  spouses  as  \«uld  ordiiiarily 


"a::d  reasoiiabl:,'-  lie  ercgectod  from  the  fact qg_ttig  existeii^G   of  su:h.  relaTiozu 

lu  this  case  it  appears  from  tlic  stipulation  t!tet   the  ordi::iar3''  as- 
sertion was  .Bado,     Zx'.  parties  v/cro  rec-ideiits   of   this   state,   and  thoy 
vverc  living  tojatlxjr  continuously  as  husbarxL  ^:^d  v/ife,   and  tlx  slightest 
inquiry  on  the  i^B.rt  of  Corrida:.!  v/ould  1E.VS  elicited  this  fact  and  furnish- 
ed him  vath  i::f otTiTstion  of  the   conraunity  relatioiis  of   the  parties,     iirs. 
Sornon  certainly  did  all   that  the  law  at  that  time  required  of  her  to  ^ve 
notice  of  her  relations  with  the  coianunity,   viz.,   sJe   lived  v/ith  her 
husband  as  his  vn.fc;   and  if,   under  svch  circumstances,   there  bein^'  no 
assertion  that  she  know  of   tlx  attempted  transfer  by  her  husband  and  no 
claim  of  any  act  or  omission  by  her  0:1  v^iiich  a  plea  of  estoppel  could  be 
founded,   the  community  real  estate  can  be  transferred  without  her  consent, 
the  statute  in  relation  to  the   sale  of  corai-nunity  real  estate  rai^ht  as 
well  be  pronoiuiced  a  nullity. 

Without  particularly  reviewing  thi  case  of  Sadler  v .  Hiesz ,_  a^glanoe 
at  the  opinions  filisd  ira^tha t~ case  wTll  "conclusive ly'^KovT'tiiat  it  is  not 
a  parallel  case  with  the  one  at  bar  in  a:iy  particular. 


2he  judgment   is  affiirmed.  Y^o  y-^    \^. 

Scott  aCid  Hoyt,    JJ,,   concur. 

Anders  and  Stiles,   JJ.,   concur  in  the  result. 

O    (Z.     L 


^ 


cZyC'Ct::^ 


^^.^^--^  / 


J 


-x..<P^l^i^^^^ 


/ 


Cy         ,-^ 


95. 


SERVmi  B.  DAES,  Hycponderit ,   v.  lELISSA. 
K.  DalTISL  et  al.,  Ax^j^^ellants. 

( 23  ^asli".   379  ) . 

Appeal  from  Superior  Court,  Spokane  Couuty. — Hon.  LeaJider 
H.  Prather,   JucI;3G.     Reversed. 

The  opinion  of  tltj  court  was  delivered  "by 

Fullerton,   J.  —  The  resp^ident,    in  her  c_pmplaint,   alleged:      That  on 
ITovemtier  15,    1690,    Geor-e  E.  Spoor  and  Bella  H.-   Spoor,  hie  wife,  l)eins 
til  en   tl-i?.  ovfliers   of  certain  real  property  rituatcd  in  the.  county  of .  £pD^ 
iSno,  mortgaged  the  same   to  the  Loratard   I::voctmcnt   Compaiiy  to  secure  the 
payiaent__of_jBicir  certain  joint  cuid  csvoral  no^otialDle  real  estate  fi^ct 
mortjaj-e  coupon  bond  for   the  curn  of  05,000  and  interest,   siven  "by  them 
to  evidence" "srioajfriade  to  thein^ouT that^day  ljy~the  Lombard  Invectment 
Company;    that  on  the   29th_day  of  ITovember,    1890,    the    said  -Lomhard  In- 
vestment__Company  sold  the  hond  and  assj^ed  the  raort^^age  to  the  respond- 
ent;   that~Spoor~and  wife  defaulted  in^j^Ipsi:>'me:it  of  the  principal  and^ 
interest  due  on  the  "borid,    ai.d  that   on  the   27th  day  of  April,   18S7,    tl^ 
"reEponderS~'Be^^au~a~Euit  in  the  superior  court   of  SpoT-:ai-j2  county  jto  fore- 
gr6se~iEhe  mort^,'gegje7malFin^^'i»"arfios  defendants ,   amons  others,    one  P,  II. 
Daiiiel  and  one   Lelia  A.  Dyer;    tliat  such  proceedings  v.'ere  had  in  such 
foroclosire  cuit  as   to  r  ecu  It   in  a  foreclosure  of  the  mortcjage  aiid  the 
sale   of   the  mortsaged  premises   to  tlc^  plaintiff,   v/Mch  sale  v;as  after- 
ward in  all  respects  duly  confirmed  "by  the  court.     The  conaalaint   then 
continues  as  follov/s-. 

"6.     55iat  under  said  fofeclosure  and  sale  and  the  said  certificate 
of   sale  from  the  said   slieriff ,   e::ecuted  in  pursuance  of  said  judsment, 
the  plaintiff  entered  into  possession  of  said  mcrt^asod  premises,  and 
the  receipts  of  the  rents   aifv  profits  thereof,   a-id  has  ciiice  continued, 
and    still  is   in  possession  thereof.    JEiat_she_ then  "believed  she  had  ac- 
quired u:ider  said  foreclosure,   a  perfect  title   to   the  sard'mort^a::;ed 
premisecj   free  from  all  liens  and  incumhraiices  and  rights   of  redemption 
other  than  the   statutes   of   the  state   of  ".7 ash i:ig ton  would  -ive  said  de- 
fcndaiits;  hut  tliat  she  has  sirjce  "been  informed  aril  "believes   t]mt  the  de- 
fendants ,_::eriE"s3riC.'Da:iiel~aixl''E:"J.  Dyer,^lmve,    or  claim  to  have,- an 
interest   in  and  to  the  raid  premises  .h;--Vi3rtiie_  of  thj  said  Ilelossa-IC. 
Da:iiol  claimins  to  te  thj  "ife  of   the  said  P.ZI.  Da:iiel,   and  E-   J-  Byer 
"claimiiij  to  ■b§~tliS"h\is"band  of~EIT¥:Eard"  Lelia  A-   Dyer,   v;hich  rights,    ifj 
^3^,',   are   inferior  and  sulDsequent   to   ilae  lien,  of  the  mortgage  under  v/hich 
said  foreclostu-e  rale  -.var  mad.e,    the  said  P.  II.  Daniel  and  Lelia  A.  Dyer 
"being  grantees  of  the  said  premises  from  the  said  Spoors,    subsequent  to 
the  execution  of  the  mortgage  aforesaid  to   the  Lombard  tivestment   Coia- 
paiiy . 

•'7.     This  plaintiff  vrais  alreac^.y  the  owner  of   1he  said  mortgage  under 
viiich  said  sale   -.vas  had,   a:id  she  is  advised  that  by  the   said  sale  she 

has  acquired  the   rights  \/hich  the  A:iglo-A^rica;T.  Land  "oi'tga^ve  a;id  Agency 
Company,  Hem-y  Hardy,  p,   ::.   Dcciiel,  Lelia  A.  Dyer,   a:.xl  i^owers  Bi-y  Goods 


I 


06. 

Concany,  vJho  were  defendants  in  said  action,  had  to  redeem  fro.n  the 
mortgage  held  or  claimed  by  the  plaintiff,  other  than  the  statutory 
rights  given  defendants  to  redeem  the  premises  from  the  forecloBure  sale, 

"8.  That  the  amount  which  was  due  and  owing  to  tho  plaintiff  in 
said  action  on  the  said  r.iortgage,  at  the  time  of  tho  entry  of  said  de- 
cree of  foroclosure  and  sale,  G::clUEive  of  tho  costs  and  e^cpense  of  said 
action  and  of  said  sale  was  the  zvsn.   of  05,966.66,  and  interest  thereon 
from  the  11th  day  of  tfanuary,  1698,  no  part  of  vhich  has  "been  paid,  ex- 
cept as  it  was  paid  "by  tlie  proceeds  of  said  sale,  under  v^hich  this 
plaintiff  claims. 

"9.   That  the  rents  and  profits  received  by  this  plaintiff  from 
said  premises  have  not  been  so  great  in  amount  as  the  annual  interest  on 
paid  mortgage,  under  which  said  foreclosure  vvras  had,  and  have  not 
amounted  to  r.cre  than  the  su,n  of  ;"':175;  that  the  plaintiff  claims  that 
the  araountE  paid  by  her  for  ta:ce5,  repairs,  and  so-forth,  should  be 
allowed  to  her,  a:id  added  to  the  said  mortgage  and  interest  thereon;  and 
that  there  is  now  due  a:id  owing  to  her  thereon,  the  sum  of  v6,350. 

"10.  That  tlie  plaintiff  has  applied  to  said  defendants,  Ilelissa  K. 
Daniel  and  E.  J.  Ityev,  a:id  requested  them  to  pay  the  plaintiff  the  said 
sura  so  due  on  the  said  mortgage  held  by  the  plaintiff,  or  to  come  to  a:i 
accounting  with  her  thereon,  a:ad,  after  the  proper  charges  and  credits, 
to  pay  to  said  plaintiff  what  should  appear  to  be  due  her  on  said  mort- 
gage, or,  in  default  thereof,  to  release  their  rights  and  et^uity  of  re- 
demption in  said  mortgaged  premises;  but  that  tiae  said  defeuda:ats  have 
hitherto  refused,  and  stiil  refuse  so  to  do,  or  to  comply  with  any  part 
of  plaintiff *E  request. 

••11.  The  plaintiff  further  says  that  the  said  premises  are  not 
near  the  equal  in  value  to  tiie  a.:iount  due  this  plaintiff  under  said  mort- 
gage, tlie  said  premises  not  exceeding  in  value  the  sum  of  04,500. 

■.therefore  the  plaintiff  dema:ids  judgment  that  an  account  may  be 
taken  Qf  what  is  due  and  owing  to  the  plaintiff  for  principal  and  in- 
terest on  said  mortgage,  and  that  an  acGou::t  may  also  be  taken  of  the 
tents  and  profits  of  the  said  mortgaged  premises  which  have  been  re- 
ceived by  the  plaintiff,  and  also  of  the  expenditures  of  the  plaintiff 
for  repairs,  taxes,  and  so-forth;  that  the  said  defendants  pay  to  this 
plaintiff  what  may  be  due  her  on  talJi:2g  the  said  accou:it  with  the  costs 
of  tliis  action,  within  a  time  to  be  appointed  by  the  court  for  that 
purpose,  or,  in  default  thereof,  that  the  said  defendants  and  all  persons 
claiming  under  them,  be  absolutely  barred  and  foreclosed  of  and  from  all 
right,  title,  and  equity  of  redemption  in  and  to  the  said  mortgaged 
premises,  and  each  a;id  every  part  thereof;  a/jd  that  the  plai:itiff  liave 
such  other  and  fiurther  relief  as  in  the  premises  may  be  just  a:xl 
equitable." 

The  appella:--tE  appeared  separately,  and  demurred  to  the  complaint 
on  the  ground  that  it  did  not  state  facts  sufficient  to  constitute  a 
cause  of  action.   On  their  demurrers  being  overruled,  they  answered 
separately.  The  answers  were,  in  substaiice,  the  same,  nnd  admitted  the 


27. 

execution  of  the  mort^'age,    the  proceedings   taVcen  to  foreclose  tiie  same, 
and.  tlaat  P.  '.'..  Daniel  aiid  Lelia  A.  Dyer  were  ~ranteec  of  the  Spoors. 
They  denied  there  v/as  anythii:i^-  due  or  ov/in:\;  on  tjie  .-.lort^.'aje,   the  allegat- 
ion of  want  of  Iniov.-ledse  on  the  part  of  respondent  of  their  interest  in 
the  property,   and  all  of  the  alle3'ations   containted  in  paragraphs  9  and 
11  of  the  complaint.     They  then  pleaded  afiiiTiiatively  the  foreclosure 
proceedings  had  by  respondent,   averring  tliat   the  raortca.i-e  indebtedness 
was  saticfied  thereby,   and  that  such  satisfaction  v/as  entered  by  respond- 
ent on  the  records  of  the  court.     Further  ansv'erin^,    thejr  allegec.  t'.,t 
Ilelissa  K.  Daniel  \7as  the  'vife  of  I.  Ih  Daniel,   and  that  E.  J.  Irje-^     ':^ 
the  husband  of  Lelia  A.  Dyer:    that  all  that  part  of  the  ,nort'S'9oed 
property  conveyed  Irj  the  Spoors  to  P.  ".  Daniel  became  and  no''  is  the 
coiTUiiuni  ty  property  of  himself  and  Jlte;   that   all   that  part   of  the 
property  conveyed  by  the  Spoors  to  Lelia  A.  Dyer  becaine  abd  now  is  the 
conmunity  property  oi  herself  and  husband; — all  of  v/hich  was  v/ell  '.oaovrn 
to  the  respondent  and  her  attorney  at  the  time  the  foreclosure  proceed- 
ings were  had.     The  court  sustained  a  general  demurrer   to  the  nev/  niatter 
contained  in  the  ansv/ers,  and   thereafter  a  trial  v/as  had  on  the  issues 
made  by   the  denials  to  the  allegations  of  the  complaint. 

The  evidence  introduced  at  the  trial  v/as  vei-y  meagre.     Two  witness- 
es testified  as  t  o  the  marketable  and  rental  value  of  ttie  mortgaged 
premises,  and   the  attorney  for  respondent  as  to  the  reason  v/hy  the 
appellants  were  not  made  parties   to  the  original  foreclosure  suit.     His 
testimony  v/e  quote   in  full: 

"Q.     I:r.  Domer,  v/ere  you  the  attorney  for  plaintiff  in  the  original 
foreclosure  proceedings  on  the  mortgage  referred  to  in  this  action? 

A.     Yes,   I  was. 

1^.  You  ma^/  state  to  the  court  v/hy  Ilelissa  I.  Dcmiel  and  E.  J.  Djrer 
were  not  made  parties  to  that  action. 

A.  The  plaintiff  furnished  rae  an  abstract  of  the  title  to  the 
property,  and  their  names  did  not  occur  as  ever  having  any  interest  in 
the  property.  The  names  of  P.  ."..  Daniel  and  Lelia  A.  Dyer  appearing  as 
subsequent  grantees  of  the  mortgagors,  and  reljang  upon  the  abstract,  I 
did  not  make  these  parties  to  that  action. 

Q.  Did  you  loiov;  at  tlie  time  that  P.  11.  Daniel  "i/as  a  married  man, 
or  that  Lelia  A.  Dyer  v.-as  a  married  v/oman? 


• 


A.     ITo,   I  did  not. 

Q.     \7hen  did  you  learn  tliat  they  v;ere  married? 

A.     About   tLie   time  of  the  sale  under  the  first  foreclosuie. 


Q.     Uae  there  any  notice  of  recoi-d  froa  Ilelissa  K-   D-.:-.iel  oi   -^.   J. 
Hy^r  claiming  any  coinmuuit;;  interest  in  this  property'-? 

A.     ITo,   there  was  not. 


98. 

Q.     I2r.  Domer,   you  were  fa.niliar,  v;oi-e  you  act,  vatii  tlie  statute  of 
this  stats  r3ruirin.:v  ".vives  v/lio  claimed  a  coraiiiunity  interest  in  real 
©state,    to  i-lace  on  record  a  declaration  to  that  effect? 

A.     Yes,    sir.  1 

Cross  E-ia-ninction 

Q,.     Ij:.  Domer,   did  the  alDStract  of  said  proi^erty  v*iich  you  examined, 
sho'.v  that  '".T.  P.  i:.  Daniel  was  a  single  mcai? 

A.     ITo,    it  did  not, 

Q.     Did  you  malce  any  effort  or  in(-uir3''  at  all  other  than  exaiaining 
said  abstract   to  ascertain  if  P.  II.  Daniel  was  a  married  man,  or  that 
Lelia  A.   ]>jer  was  a  married  v;oman? 

A.     Ho,   I  did  not,  e:;cept  to  see  that  no  notice  of  claims  of  a 
coHiTiimity  interest  in  the  ivroperty  described  on  the  coirfplaint  had  been 
filed  vdth  the  count;^  auditor  of  Spolsine  county. 

Q,     You  ejipocted  and  relied  upon  said  abstract   to  show  whether  or 
not  such  a  corxiunity  clai;n  had  been  filed,  did  you  not? 

A.     Yes,   sir;    I  did," 

One  v/itness  was  sv/orn  on  tlae  part  of  the  appellants,  v/ho  testified 
as  followa: 

"I  have  :aao-.,n  defendants  Melissa  Z.  Daniel  and  her  husband,  P.  II. 
Daniel,  for  about  nine  years.  They  purchased  the  property  described  in 
the  complaint  herein  in  1620,  for  about  fourteen  thousand  dollars.  They 
occupied  tjie  same  as  a  family  residence  during  the  years  1890,  1831  and 
1892.  Since  1692  I  have  acted  as  agent  and  attorney  for  them,  and  knov; 
that  t'i'ie'f   are  nov;,  and  during  the  ten  years  last  past,  have  resided  to- 
gether as  husband  and  wife.  21-iat  tlie  house  on  said  property  cost  about 
nine  thousand  dollars  and  that  it  is  now  reasonably  worth  soven  thousand 
dollars,  judging  from  sales  recently  made  in  Ciis  city;  that  the  records 
in  the  auditor's  office  in  Spokane  county  sho\7  various  transfers  of 
property  made  by  P.  II.  Da:iiel  a:-.d  Ilelissa  K.   Daniel,  his  ^-dfo:  that  up  to 
and  sometime  before  the  coi'xiencsment  of  tlie  first  suit  of  foreclosure,  I 
was  renting  the  house  on  tiiis  property  for  forty  dollars  per  month,  net; 
timt  rents  are  higher  nov/  than  they  v/ere  then;  that,  after  the  said  suit 
v;as  entered,  there  \7as  change  of  tenants,  and,  o'^.lng  to  the  pending  suit, 
I  '*/as  unable  to  rent  tlie  house  for  more  than  thirty  dollars  par  mouth, 
net,  v,'hic.i  obtained  until  tenant  vacated  because  of  being  disturbed  by  the 
agents  of  plaintiff  herein,  in  Ilarch.  2iiat  defendant  S.  J.  Dyer  and  the 
said  Lelia  A.  Dji-er  are  husband  and  v.lfe,  and  for  ten  years  last  past  have 
resided  together  s  such  in  the  city  aix".  county  of  Spokane,  './ashington; 
tlaat  said  property  is,  and  for  long  prior  to  said  attempted  foreclosure 
v/as,  the  co:n..rLmit3r  property  of  P,  II.  Daniel  and  Ilelissa  Ki  Daniel,  to- 
v/it:  lots  1  and  2,  blocl:  59  of  Second  addition  to  P.ailroad  addition,  and 
the  v;est  half  of  lot  3,  bloc'.:  59,  Second  addition  to  P.ailroad  addition. 


is  aad  was  comrn'niuity  property  of  E.   J,  Iiyer  n.ad  lelia  A.  Dyer.  A,  ^-^ 

% 

That  P.  LIo  Daniel  ciicl  Helisca  Z.  Daniel  are  not  resic.ents  of  Spo^^an(^ 

nor  of  tiie  utate  of  T,'aElii:a^-ton,  "out  now  reside  and  have  for  a  uiimlier  of        ^ip^^ 
years  prior  to  the  former  foreclosure  suit,   at  Los  Anseles,   California." 

The  court  theieupou  *xiajde  fiixLiii^s  of  fact  and  conclusions  of  lav;, 
holding'  that  hy  tZ:e    orisinc.l  foreclosure  suit  and  the  sale  thereunder 
the  respondent  acquired  all  the  rights  the  defendants  in  that  action  had 
in  the  premises  described  in  the  mortga^'O,   e^:cept  the  statutory  right 
to  redeem  from  Zib  foreclosure  saler    that  the   omission  of  the  appellants 
from  the  original  f oreclosuLc  cuit  was  an  ''ei^cuEahle  rnistate  and  neglect'' 
on  the  part  of  ths  respondent's  attorne3r,  and  that  the  respondent  was 
entitled  to  a  decree  reruirin^  tZie  appellcnts   to  redeem  the  premises 
from  the  lien  of  the  moit:5ase  vdthin  one  yeai'  "by  paying  the  plaintiff 
the  sum  of  $6,450  and  the  costs   of  this  proceeding;   and  "that;    in  case 
of  their  failure  so  to  do,    that  they,  aiid  each  of  them,   and  all  persons 
claiming  under  them  or  either  of   then,   shall  be  forever  barred  and  fore- 
closed    of  all  rights    title,    or  interest   in  said  pi-cmises  or  anjr  part 
thereof,"  and  entered  a  decree  in  accordance  therevdth. 

Under  the  statutes  of   fiiis  state  a  mortgage  of  real  property  does 
not  convey  to  the  martgagee  the  title   to  the  mortgaged  premises,   either 
bef.CET-e  or  after  condition  broten.     L  mortgage  is   a  lien  simply,   a  mere 
security  for  the  payment   of  money,   and  is  tatisfied  and  extinguished  by 
the  payment  of  the  money  for  wULch  it  is  given  as  security  at  any  time 
before  the  sale  of  the  mortgaged  premises  tuader  a  judgment  or  decree  of 
foreclosure c     After  condition  broken,    the  statutes  confer  on  the  mort- 
gagee the  right  to  have  the  amount  due  him  by  reason  of  the  broken  con- 
dition determined  by  a  judgment  or  decree  of  a  court,    fiie  mortgage  fore- 
closed,  and  the  mortgaged  property  sold  at  public  auction,   arKl  the  pro- 
ceeds of  the  sale  applied  in  RatJs-fsct.ion  of  the  ainomt  found  due.     As 
the  legal  title  does  not  pass  by"  the  axecution  of  a  mortgage,    there  can 
be  no  sujh  thing  as  an  equity  cf  redemption  in  a  mortgagor,   or  a  sub- 
sec^uent  grantee  of  a  Biortgagor,   5s'tiic.t  phrasR   is'-t-nd-'erstooc'.  and  defined 
by  the  courts   in  those  jurisdictions  where  a  mortgage  is  held  to  convey 
the  legal  title  to  the  mortgaged  premises.     Here   the  rii^  to  redeem  is 
a  statutory  right,   arising  by  virtue  of  the  statute  at  the  time  of  the 
sale,  and  errpiring  at  tli3  end  of  t2ie  statutory  period.     Ho  suit  or  other 
proceeding  is  necossai'y  to  cut  it  off.     Tiie  power  which  created  it  f i::ed 
its  limitation,  and  beyond  that  it  cai:::iot  extend.     Ksrdy  v.  Kerriott, 
11  '.ash.   460    {.9  lac.    S58);  Hajrs  v.  ::erchaiits'   national  Bani:,   K-  "ash. 
192   (44Pac.   Iv7).     As  VVS.6   said  by  I i-.    Justice   Turner  in  Parker  v. 
Dacres,  2  'iash.   T.  459   (7  Pac.   SS"^): 

='The  proceeding  to  foreclose  stch  a  mortage  is  entirely  different 
from  that  to  foreclose  the  equity:  of  redeinption,  which,   to  meet   the 
hardships  of  tiae  comnon  law  conception  of  a  mortgage,  was  a  creation  of 
the  courts  of  equity.     Under  our  theory  of  a  mortgage,  there   is  no  such 
thing  as  an  equity  of  redemption  in  the  mortgagor.     The  legal  title  has 
never  passed  from  him.      The  equity  is  in  tlie  mortgagee,   and  consists   in 
Ms  right  to  have  the  mortgaged  property  sold  to  secure  the  pajnaent  of 
the  mortgage  debt." 


100. 

This  bein^  so,  a  suit  in  strict  foreclosure,  v;here  the  mortr^zr^ee   is 
proceeding-  against  the  O'.s.ier  of  the  foe,  whether  suoh  ovaier  "be  t'.ae 
mortgagor  or  a  suli^sequent  pui-chaser  of  the  mortgagor,  is  tmathorized  and 
unvv'ai'ranted  either  by  the  statute,  or  the  nature  of  a  mortgage  under  the 
statute.  V/hile  a  strict  ioreclosui'e  may  Tdg  the  natm-al  remedy  where  a 
mortgage  is  regai-ded  as  a  conditional  sale  of  the  land  mortgaged,  it  has 
no  place  under  a  si^stem  like  ox.s,  -i.here  the  title  remains  in  the 
mortgagor,  and  the  mortgagee  has'onljr  a  lien.  Stevens  v.  Ferry,  48  Fed.  7. 
Now,  the  interests  of  tlie  ap2ellan.ts  in  tlie  lands  in  question  -.v-ere  those 
of  ovmars  oi  ihe   fee.  T.-.e   dsed  oi'  the  Spoors  to  i.  ",  Daniel  conveyed 
the  legal  title  to  that  part  of  the  land  desciibed  therei-i  to  hin  and  his 
v.'ife,  mailing  it  their  caniauiiity  property.  £o,  liliewise,  the  dsed  to 
Lelia  A.  Djev   made  the  i:ropert:'  described  in  it  the  coixuu.ity  property  of 
herself  and  husband.  Kie  ap.ellants,  then,  having  an  interest  in  the 
property  as  o\merE,  could  not  be  foreclosed  of  such  interests  by  a  pro- 
ceeding in  strict  foreclosure,  and  the  decree  entered  by  t".  e  trial  court 
is  erroneous  if  it  is  to  be  construed  as  passing  tiie  title  the  appellants 
had  in  the  mortgaged  propert3'-  to  the  respondent. 

The  principal  reliance  of  the  respondent,  however,  ic  upon  the  con- 
tention that  the  title  of  the  appellants  passed  by  tlie  original  foreclosure 
proceedings  and  sale  tliereunder,  leaving  in  the..i,  if  anything-  more  than 
their  statutory  right  to  redeem,  the  right  only  to  tlreir  day  in  court  to 
contest  the  liability  of  the  property  to  be  cold  for  the  satisfaction  of 
the  mortgage  debt;  and,  she  argues,  the  present  suit  was  proper  as  giving 
them  their  daj''  in  court  and  the  opportunity  to  mate  such  contest.  In 
other  words,  the  contention  is  that  both  of  the  spouses  are  not  necessary 
pai-ties  to  a  suit  brought  to  foieclose  a  mortgage  covering  their  community 
real  property.  V,hlle  the  precise  question  here  suggested  seems  not  to 
have  been  determined  by  this  court,  the  principle  involved  has  receivet. 
frequent  consideration.  Littell  c;  Smythe  ."jfg.  Co.  v.  Inller,   .,ash.  -160 
(28  i-ac.  10:^5),  was  a  suit  brought  to  foreclose  a  mechanic's  lien  upon 
coraiaunity  real  property.  The  coutiact  for  tlie  improvement  out  of  -.vhich 
the   lien  arose  was  made  by  tie  husband,  and  he  was  made  the  sole  defend- 
ant in  the  proceeding  brought  to  foreclose  tlie  lien.  It  was  objected 
that  the  suit  could  not  be  maintained  because  of  the  non-joindsr  of  the 
wife.  This  objection,  although  overruled  by  the  trial  court,  v.as  sus- 
tained here,  and  the  judgment  reversed  on  this  ground  alone.  Ecott,  J., 
who  delivered  the  opinion  of  the  court, said: 

"Hotwithstanding  tlta  fact,  however,  that  t1r&   husband  individually 
can  incur  t?ie  debt,  in  :11  suits  to  foreclose  liens  upon  conraunity  real 
esti-te  the  wife  is  a  necessary  party  defendant.  She  has  at  least  as  much 
right  to  contest  the  f_.ctE  ma>:ing  the  same  a  clio-rge  against  tlie  community 
as  the  husband  has.  There  can  be  no  sale  of  tlie  husband's  or  v/ife's  in- 
terest in  the  com.Tonity  property  separately  during  the  e;:istenG3  of  the 
community.  Sec.  1353  of  the  Code,  authorizing  the  interest  of  a  pai"ty 
o\ning  less  t::»f.n  a  fee  simple  to  be  sold,  does  not  apply  to  such  a  case.'* 

So,  also,  in  Sagmeister  v.  Foss,  -'I-  V/ash.  '20  (oOPac,  60,  744j,  it 
was  held  that  tlie  wife  '/as  a  necessary  party  to  a  suit  brought  to  fore- 
close a  mechanic's  lien  upon  community  real  estate.  In  Eesttle  v.  Ba"ter, 
20  'ash.  71<L  (55  Pac.  -20),  the  question  was  v.hether  a  v.dfe  -was  a 
necessary  partr^  to  a  suit  b:.  ought  to  foreclose  rn  assessment  lien  upon 


101. 

community  real  property.     There   it  v/as   said:    "The  affirmative  of  this 
ruection  It  too  -'ell  settled  in  this  state   to  admit  of  present  discussion, 
in  Paxke  v.  loattle,   8  '.i:.sh,   78    {C5  Pac .  594,   :A  Am.  St.  Rep.   8::>9,   20  L. 
E.  A.   66),   it  '/as  held  that   the  vd.fe  v.-as  a  necessary  party  plaintiff  \/ith 
the  husband  in  an  actiou  to  recover  dsmaGes  for  the  v/i-oucfui  taking  of 
coiTimuuity  real  property;   and  in  tlie  late  cc.se  of  Lovvnsdale  v.  Gray's 
Harbor  Soora  Co.,   21  'ash.   542   (58  Pac.   56'),   it  v/as  hold    that  ia  can  action 
to  recover  the  possession  and  tlic  rents  and  profits  of  co.-nrnunity  real 
property,    tlio  ''/ife  was  a  necessary  jKO-ty  plaintiff  \7ith  the  husband. 
Chief  Justice  (Gordon,   in  aiinoLvacin;;  the  opiuiou  of  the  court,  after  re- 
viev/iug'  the  case  of  -arlce  v.  Seattle,   8  '.'ash.   76,  used  the  follov/ing 
languages 

"V/e  are  satisfied  v/ith  the  reasoning  and  conclusion  arrived  at  in 
that  case,   and  think  that  it  controls  the  question  in  the  present  case, 
notv;ithstanding  that  in  the  present  case  the  recovery  was  limited  tto  the 
possession  of  the  property  and  to   the  value  of  the  rents  and  profits. 
It  seems  to  uc   that,   if  the  husband  can  raaintr-in  tl^e  action  for  rents  and 
profits  of  commijnity  real  property,  he  can  do  so  only  upon  the  theory 
that  he  has  pov/er  in  the  first  instance  to  malso  a  lawful  lease  of  it. 
A  lease  is  an  incumbi'aace,   and,   under  tec.  4491,  Bal.  Code,    the  husband, 
while  having  tl'i©  management  and  control  of  the  co^n-uiiity  real  property, 
is  e::pressly  prohibited  fron  conveying  or  incumbering  it,  unless  the  -..dfe 
joins  vath  him.     Me  think  that  every  objection  \£iicn  can  be  urged  ag--inst 
the  maintenance  of  an.  action  by   the  husband  alone   to  recover  damages  for 
the  appropriation  of  c0;-munity  xeal  property  applies  ta  an  action  brought 
by  him  ior  the  recovery  of  rents   and  prorits  of  couiuunity  real  P- ops.  by, 
and  applies  vath  even  greater  force  to  an  action  biouglat   to  recover  its 
possesEion.     As  is  well  said  iu  the  Parke  Case,   if  he  can  maintain  the 
action  ho  c^  compro.v.ise  it.     The  effect  of   that  compromise  miglit  be  to 
effectually  dispossess  the  community  of   tlie  lanfl:,  or,   at  least,   to 
seriously  incumber  it.     It  violates  the  spirit,   and  we   thin".-:  the  letter, 
of  Sec.  4431,    supra,   and  is  not   to  be   tolerated." 

It  v/ould  seem  to  be  hard  to  disting-uish  tlie  princij..le  of  these  cases 
from  tlrnt  of  a  case  brought   to  foreclose  a  .r.ortgage  lien.     But  tlie  re- 
spondent conteua.E  that  the  latter  falls  -.Ithin  the  principle  of  another 
line  of  decisions  announced  by  tliis  court,  represented  by  the  cases  of 
Calhocui  V.  Leary,   6  ^'ash.   17    (02  Pac.  1070);    Curry  v.  Catlin,    9  •/ash.  495 
(i7  Pac,    678);   Bryant  v.  Etetsoa  c;  Post  '/lU  Co.,   lb  •/ash.   6:2   (4:.  Pac. 
9bl),   and  their  'j-ndred  cases,    i'^  ■  "lich  v;e  hold  that  under  a  judgment 
rendered  upon  a  co;.ii.i--ui tj:  debt  against   the  husband  alone  the  coimunity 
real  property  eJ    the  husband  and  v/ife  may  be  sold,    and  tl-^t  the  entire 
tnteijct   of  the  cana-aunity  will  pass  to   the  purchaser  at  such  sale.     It 
will  be  noticed  that  the" court  does  not,    in  any  of   t>.G  cases  cited,  hold 
that  the  husbcnd  is  \;ithout  power  as   tlie  managing  and  controlling  agent 
of  the  commuiiity  real  p-opa.  cy  to  c:.  a.te  a  debt  for  v;hich  the  community 
property  may  be'sold.      The  distinction  is,    that  in  the  one  line  of  cases 
it  is  held   that    the  wile  raust  be  made  a  party  and  given  an  opportunity  to 
defend,  before  the  coi-.i-vinity  property  can  be  sold  to  satisfy  the  debt; 
v;hile  in  the  other,   it  is  hold   that  the  property  may  be  sold  v.-ithout  her 
being  joined  in  aay  of  the  jxoceedings  prior  to  the  sale,  but  that  the 
sale  is  opon  to  c®ni;9et  by  her.     In  my  opinion,   it  would  have  been  the 


^.J^  . 


*r? 


--'i'ft-^»-t 


^^*2::i-^^^<;:>^^^^'^2-<f 


-s/'***^^^^- 


'^^^ 


i?2-u.'<-«s!5f^^-^^^ 


-^-^^ 


^ 


y^' 


102. 

better  rule  to  have  requirod  the  \dfe  to  be  joined  in  all  cases  v;here  the 
community  property  is  sought   to  be  sold  for  a  community  debt^   and  leave 
"thfe  jQdgment  of  no  force  as  a  lien  thereon  v/hen  she  is  not  a  party.  _By 
permitting  the   sale  to  bo  first  made,   and  afterwards  contested,  uncertain- 
ty is  introduced  \/here  the  utmost  certainty  obtainable  should  be  required. 
However  this  may  be,    the  rule,  as  applied  to   the  facts  of   the  ^iven  ca.ses, 
has  become  so  firmly  established  by  tlie  decisions  of  tliis  court   that  it 
is  not  nov;  to  be  overturned.     But  we  will  not  e::tend  it  beyond  13ie  point 
to  vrhich  is  has  already  3'one,   or  hold  it  applicable  to  cases  not  strictly 
within  the  facts  of  the  cases  in  v/hich  it  has  been  applied.      Ve  conclude, 
therefore,   that  the  husband  a.zC.  -./ife  are  both  necessary  parties  to  an 
action  to  foreclose  a  raort;j'a3'e  upon  their  coiviraunity  real  property.     In 
so  concluding,   it  is  proper  to  add,  -./e  have  not  overlooiied  the  cases  of 
Turner  v.  Bellingliarn  Bay  Lui:iber,   etc.,   Co.,   9  './ash.  484   (:.7  Pac.  674), 
and  Leggett  v.  x^.oss,   14  "./ash.  41    (44  Pac.  111). 

The  evidence  does  not  brin^-  the  case  witliin  .fehfe  principle  anuounced 
in  Sadler  v.  ITiesz,   5  YJash.  182    (   '1  Pac.   6L0,   10:0),   or  iTuhn  v.  lliller, 
5  Wash.  405   (01  Pac.  IOCjI,   :4  Am.  St.  Rep.  868).     The  rule  announced  in 
Adams  v.  Black,   6  Uash.  528   [IC  Pac.  1074)   is  more  nearly  in  point.     ITor 
is  the  husband  or  v;ife  estopped  from  claiming  an  interest  in  community 
real  property  by  fai  .ling  to  file   the  claim  provided  for  in  Sec.  4545  of 
the  Code   (Ballinger's ) .     Tlie  act,   of  v.-hich  tliat   section  is  a  part,   is  in- 
tended to  protect   "actual  bona  fide  purchasers"  of  community  real  prop- 
erty.;  that  is,   such  persons  as  purchase  without  loiowledge  of  the  exist- 
ence of  the  marriage  relation,   or  who  could  not,  v;ith  reasonable  diligence 
have  obtained  such  laiow ledge.       "he  evidence  of  the  attorney  is  not 
sufficient  to  establish  a  claim  of  this  kind  in  the  present  case. 

The  judgment  is  reversed  atid  reraanded  \/ith  instructions  to  dismiss 

tiie  action.  ,__  t^       o 

\-  •  <~^     jp     A 

Dunbar,  C.   J.,   and  Re avis  and  Anders,  J.J.,   concur. 


103. 


JULIA  DALY,  Appellant,  v.  S.  RIZ2UTT0  et  al..  Respondents. 

59  V'ash  62,  1910. 

Appeal  from  a  judgnent   of  tlie  superior  court  for  ICing  county, 
Ronald,    J.,    onteiec'.  ilovernbar   17,    1909,   upon  grcntin^;  a  nonsuit,   cMsniisE- 
ing  an  actioi:  to  cancol  a  c.sod  end  rsoover  ^^ossession  of  real  ga'029£j^3''i 
after  a  trial  on  Qie  raeiits   Deioie  tj.x  court.     A.fiir.ned.  " 

CKADV/ICi:,   J.--lJj;M2T^iri_^.Jri-i.-r^  T)-,1y,    -■■^c-   .Tf>cp-_i]^  p^_  Tipjy_-.,'fl-rs  married 
3t  Chicago,   Illinois,    in  Decs.Joar,    1888.     AlDOut  I'.ay  15,    190i,    Joseph  P. 
Daiygesei  tgc~hl's  -/ife  and  fe.mil3!-  and  cr.me   tu  Seattle.     He  die,  not  ma-3 
Ms  \vher3a'bouts  liTdwIi"  t'D"-is_^^ife,    out   in  Au.2,UEt,    1904- ,   hv^~^^TW^^^io^^r^^ 
^m3to~"b-s-T;oTia.gg~for~Si3'IIorthernTacifio  ?-ail  /:y  Corapany'as  a  triXisSB^ • 
FronTTliat  time  on  he  corgesponded  vfitli  his  children^  and  v/i'Ote  a  fe'.r 
letters  to  his  wife,    evidently  in  ancv/er  to  letters  received  fro.n  her 
^/itli  leference  to  the  childien,   and  the  home  in  Ghica^i'o  '/nioh  \"'as  under 
mortgage  ooid  about   to  be  sold-      The  defendaa-t  IJalv  at  all  times  seejnE_to 
JaajLe  desired  that  his  children  he  s^gntjto  Seattle.     He  finally  obtained 
transportation  for  them.   biiL plaintiff  returned  n_because  she"  d"i"d~no€" 
want   the  children  to   travel  alone .     He  never  sent-pfalTi^Ffrf'^iTy^TjgSgYju. 
although   the  testimony  Eho-.vs   that  he  was  in  funds,  having  paid  '.-eSO  for 
a  team  of  horses.     His  v;ages  were  about  si^c  dollais  a  day.     Irs.   Dajj 
came   to  Seattle  in  April  or  llay,    1905,   and  stayed  about  one  month,  when 
she  returned  to  Chicago.     In  August,   1907,   she  came  to  Seattle,,  wjth  her 
Children,  atid  h,aa  s i--ifie--ga^Apri   thnrp'.     Several  employees  in  the  rorthern 
lacific  yard  testified  tliat  the:"  :^^^-  others  employed  ^;ith  I^aly  :aie\/  him 
to  te  a  married  man.     On  February-  20,   1906,  defendant  Daly  purchased  frog 
the  Hill  Tract  JjnprovenienT  Company  a  lot  in   flie^ity  of  Seattle;__^^nov-... 
ember  16,  1906,  he  convejr'ed^Siis'  prqperty_,  "describing  Jilraself  "as  a  ci:^le^--^j^ 
aad  unmafriegTmauT    On jthj_J^7th_day_of„iTovsiaber,_  19  grantee  sole. 

and  conveyed  the  property  to  the  defendants  Rizzutto,  who  are  no..-  in 
possession  of~Gi5~prgpgrty3 — rJrs.—Daiy—wste-in-S^artrtle— stout  one  year '/lisn, 
"at   the~Euggestion  of   others   that  lier  husband  had  bought  praperty,,   she 
caused  inquiry  to  be  made  which  developed  the  facts  as  v/e  have  related 
ttem.    Jjrs^_DaIy_brought    fli  is  _ac  t  ion  to   recover  possession  of  the  property, 
asserting  j^t_tO:_.tLe_Qflmriiunity'_PEQpe^        Her 'husband  refusing  to  join  as 
sTplaintiff,  v;as  made  a  defendant.       Upon  a  trial  a  nonsuit  was  granted, 
and  plaintiff  has  appealed.   '  \;e  shall  refer  to  defendants  Rizzutto  as 
respondent  E. 

Appellant  relies  upon  the   cases  of  Dane  v-  Daniel,   2o  '?ash.  Z79^   5" 
Pac.   258,    and  Adams  v.  Blaclr,    5  Y/ash.  528,   Cv>  Pac.   1074,   vdiile   respond- 
entr.  rely  i^ on  Sadler  v.  ITiesz,    5  '/ash.    182,    ::i  Pac.    SDO,    lOCO,    and  Sec. 
8771,,  Rem.  Cc  Bal.  Code,      In  Dane  v.  Daniel,    it  '..'as  held    tiiat   failure  to 
assert  a  claim  to  community  properly'  held  in   Gie  name  of  a  husband  did 
not   estop  the  v/ife  from  claiming  an  interest  therein,   excep-t  as  against 
Birch  bona,  fide  purchasers  as  purchased  v/ithout  ioiovdedge  of  -ftio  e::iEtence 
of  the  marriage  relation,    or  who  could  not  bjr  the  exercise   of  reasonable 
diligenco  h^vo  obtained  cuch  knowledge-      In  Sadler  v.   Uiesz,    the  v;ife  vas 
denied  ?52  interest  in  the  property'  claimed  to  be  corjuunity  property.      Tlie 
parties  had  boon  married  in  186r5.     Tliey  lived  together  for  eight  years, 
i.iaen  the  husband  came   to   th£  Pacific  Coast;    talcing  up  his  residence   in 


104. 

Kitsap  county,     uadler's   family  reina-ined  in  the  2act,   and   the  fact   that 
he  was  mairied  was  uiil:iio\m  to  I'-is   associates  and  acquaintances.     He  rep- 
resented himself  to  lie  a  widov;er.     In  1885  he  acquired  the  lands  \/hich 
became  the  subject  of  the  suit.     In  1889  Ilrs.  Sadler  appeared  and  asserted 
her  claim  to  the  land.     Lhile  the  result   of   tlaat  case  is   certain,    the 
ground  u^:ion  v.hich  the  decision  should  properly  be  iTiade   to  rest  has  been 
the  subject  of  debate  and  controversy  by  the  bar,   and  the  occasion  of 
much  doubt  on  the  part  of  the  courts.     The  question  has  been  put   to  this 
court  ill  subsequent  cases,  but   it  being  possible   to  decide  the  particular 
case  on  6ther  grounds,   it  has  not  been  ansv/ered.     It  is  sufficient  to  say 
that,  up  to   this  time,   no  absolute  rule  has  been  laid  dov-'n  by   tliis  court, 
but  each  case  has  been  met  by  refeience  to  its  ova  facts. 

The  facts  in  this  case,    in  our  judgment,   are  v^holly  insufficient  to 
put  respondents  or   their  grantors  u^.on  notice.     Eie  record  title   stood  in 
the  namo  of  Joseph  l'.  Daly.     The  coixiunity  had  never  occujjied   the  proper- 
ty, nor  had  there  been  any  conveyances  or  instru-aents  of  record  wi-Ach 
would  indicate  any  ov^iership  other  tlian  that  of  Daly,  and  he  hsd,  by  the 
most   colenin  assurance,    reprotented  and  acloiov/l edged  himself  to  be  2   single 
man.     It   is  not  shown  that  Respondents  or  their  grantors  "mew  that  Daly 
was  employed  as  a  switclii7ia:i  i.i  the  Nortlieru  Pacific  yards,   a:id  eve:,  thouji 
the  testimony  showed  this  fact,   it  v.-ould  not  be  enough  to  put  them  upon 
notice,  for  it  in  no  way  suggested  to  a  stranger  anything  with  reference 
to  his  domestic  status,   or  gave   the  sliglitest  clue  for  inquiry  upon  the 
subject-matter  of  the   transfer.     In  this  class   of  cases,   aiid  particularly 
so  since  the  enactment   of  our  statute,   the   terra  "notice"  must  be  taVcei:  in 
its  full  legal  sense.     It  need  not  be  actual,   nor  amount  to  full  Iciow- 
ledge,   but    it  should  be    such  "information,  fro.n  whatever  source  derived, 
which  would  excite  apprehension  in  an  ordinary  nind  and  prom:tt  2.  _>er50n 
of  average  prudence   to  make  ir.cuiry."     Bryant  v.   Booze,   55  Ga.  4^8; 
Phillips  v.  Reitz,    16  Kan,   396.      It  follows,   then,    that  it  is   not  enough 
to  say  that  diligent   inquiry  would  have   led  to  a  discovery,    but  it  must 
be  shown  that  the  purchaser  had,   or  should  have  had,  laaov;ledge  of  some 
fact  or  circumstance  which  would  raise  a  duty  to  inquire.     Implied  notice 
arisea  froui  Iciov/ledge  ^nd  not  from  ignorance,  unlecc  the   la-  charges 
notice  by  registry  or  other   toVcen.     IkjCallum  v.   Corn  Iroducts  Co.,   Vol 
App.  Div.    617,    116  N.   Y.   £upp.    118. 

"There  muct  ap^-ear   to  be,    in  tlie  nature  of  the  case,    such  a  connect- 
ion between  the  facts  discovered  and  the  further  facts   to  be  discovered, 
that  the   former  may  be   said  to  furnish  a  clue — a  rGaco;:£ble  and  ::atural 
clue— to   the  latter."     Birdsall  v.  Eussell,   29  IT,  Y.  220,   250. 
See,   also,  Joh:icon  v.   Erlandson,   14  H.  D.   518,    105  IT.  '..'.   722. 

In  IlcFarland'c  Adra'r  v.  Louisville  C^  U.  R.   Co.,   150  Ky.   172,    115  S. 
V/.  82,   it  was  urged,  as  in  this  case,   tliat  the  defendant  well  imew  tie   ; 
facts  or  "that    the   said  lcio^"ledge  was  easily  accesEible  to  him."     The 
court  said; 

"■Kia  fact  that  a  person  could  learn  of  a  thing  is  not  equivalent  to 
knowledge,  especially  v.here  the  facts  alleged  do  not  shov/  that  there  was 
anything  to  ^.ut  him  upon  notice." 


105. 

In  ::icliigaia  it  has  Tdgqu  hold — Ilillar  <J:-Co.  v.  Olney,  69  I'.ich.  560, 
bt  H.  .■'.  558, — ti-^t  it  is  well  settled  tliat,  if  one  has  taaowledge  or  iu- 
fonmation  of  such  facts  as  would  lecd  an  ordinarily  v^^^^c.ont  ran  to  mal:e 
iuquiiy  as  to  Cie  rij^hts  of  others  in  ;,^roi>erty  he  is  about  to  x^urchase, 
he  must  be  cl:ar3-ed  with  notice  of  such  facts  as  inquiry  v/ould  have  dis- 
covered. But  "by  the  v;ay  of  eiii£>hasii.in:];  the  fact  that  there  must  be  a 
leaven  of  knowladge  or  information,    Qae  court  i^roceeds   to  say: 

"Chic  court  lias  never  gone   to  tlie  e::teut   that,   solely  upon  failure 
to  inquire  of    tie  iiiortsati,'or  as   to  prior  incuabranceE  or  prior  conveyances, 
one  is   to  be  chr.rced  \ath  notice  of  such  incumbrances  or  conveyances;   and 
\/e  are  a\/are  of  no  case   in  any  court  that  holds   to  this  doctrine.     Ihe 
e:ctont  to  which  the  cases  liave  oOne  is  that,  -./here   the  fact  of  a  prior 
conveyance  or  incvimbrance  is  brougjit  to   the  knotdedge  of  the  subsequent 
purchaser  or  incumbrancer,  h©  must  be  held  to  tate  subject   to  such  prior 
conveyance   or  iucurabrance,   or,  ^hen  such  circuiastances  are  shown  to  e::iEt 
as  would  put  an  ordinarily  prudent  business  inan  upon  incuiry  as   to  such 
prior  conveyance  or  incurabrance,    then  he  is  charged  vat?:  notice  of  such 
facts  as  upon  inquiry  he  could  Iiave  ascertained;   but  where  circumstances 
alone  are  relied  upon,  with  no  proof  of  actual  Vuio\:led3e,   they  must  be  of 
such  cliaracter   that  failure  to  ioake  the  inquiry  aiTiounts    to  bad  faith." 
In  that  case,   as  in  this,    it  v/as  not  shown   that  there  was   tl^e  least 
intimation  or  hint   from  any  source    that  a  Ciird  party  had  any  interest   in 
the  x^roperty. 

T<hen  these  rules  are  considered,   in  connection  with  the  fact  that 
the  husband  and  wife  were  living  separate  and  apart,    she  in  a  disti-nt 
state,  and    tliat  the  property  had  been  acquired  and  sold  by   ^e  husband 
in  defiance  of   the  community's   rights,   if   it  be  held  that  a  community 
exists  under  such  circumstances,   it  vould  seem  that  respondents  exercised 
the  diligence  put  upon  ordinarily  prudent  persons,   and  are  entitled  to 
claim  as  bona  fide  purchasers  under   the  statute.     This  case  is  easily 
distinguished  from  Dane  v.  Daniel,  where   the  property  has  baen  formerly 
occujjied  by  one   of   the  parties  and  his  ■/ifo.      Haey  had  made  a  number  of 
conveyances  as  husband  and  wife,   all  of  ■■.hich  had  been  recorded,   and  the 
other  party  and  his  wife  had  lived  for  more   than  ten  years   in  the  couiity 
and  wore  well  loiown  to  be  husband  and  wife.     2h.e  case  is  .nore  lihe 
Attobery  v.    O'lleil,  4-2  "ash.  467,   85  i'ac.   270,  where  the  court  said: 

"A  purchaser  must,   no  doubt,   e::ercise  due  diligence  to  ascertain  the 
status  of  his  several  grantors  at  the    tine  they  acquired  zxit  coxiveyed  the 
pro^-erty,  but  he  is  not  bound    to  go  outside  of  and  beyond  the  record  to 
ascortain  whether  anj^  such  grantor  had  an  equity  in   the  premises  before 
he  acquired  his   title,    and  whether  he  was  iT:iarried  or  single  v.hen  such 
T/quity  v/as  acquired.     If  such  v/ere  the  case,  records  and  deeds  would  be 
of  little   avail,    ^nd  the  evils   resulting  from  the  adoption  of  such  a  lule 
would  far  outweigh  any  benefits   to  be  derived  from  it." 

In  her  reply  brief  apipellant  contends   that,   in  any  event,    the  case 
should  be  reversed  and  the  respondents  put   to   tlie  proof  of  bona  fides. 
It  is  not  denied  that  respondents'   gr£;aitor  was  a  purchaser  for  value,   or 
that  the  record  title  was  clear.     This  raised  the  presumption   that  the 
purchaser  -./as  v,'ithoi-.t  notice,   aiid  put    tlie  burden  on  appellant   to  prove 


^^  y^-^^^ 


^C^  ;^.%^<...-^^*-^=$<    C.  ^^^^ 


106. 


notiC9  of  hor  equity. 

"Proof  of  iiuch  payiiOeut,   in  the  atisence  of  proof  of  notice,   oi   of  any 
fact    cufficicut   iu  la\/  to  clizr^e  notico,    oi   cuificieut   to  j^ut   tl^s  i-ur- 
cliat-er  u^poii  iucuiry,  mil  raise  the  prcsujiiption  th.-.t  Ms  _)Uic:ia£:e  was 
v/ithout  notice,   siad   Cio  onus    /ill  "be  upon,  the  one  asserting-  an  ecuity  in 
the  prqpcrtjr  to  prove  notice   thereof  to  sucii  puichasei . •'     T/illiOiTis  v. 
tniith,   128  Ga.  :06,   57  r>.i:.   001. 

See,   also,  Atkinson  v.   C-ieavec,   70  ;;iss.  42,   11  South,    6£C,  and 
CasoG  citot. ;   IC'  jiicy.  JiviCoaco,    SOI. 


In  llill.^r  C.  Co,  V.   Olney,   supra,   it  \/as 


lie: 


"'■Je  are  of  the  opinion  that   tliero  is  no  tiling  shovAi  ia  this  case  that 
■v/oulc'.  have  put  an  orCixiax  ily  piudeut  husineeE  man  on  inquiry,   and  that 
there  was  no  quoction  of  fact  to  ^o  to  the  jury  for  a  findin.r;  upon  this 

part  of  tlie  case."  . 

I-  o  V-      ^-^Jr^ 

For  the  reasons  assigned,    the  judgment  is  aflirraeuT"  " 

Rudlcin,   G.   J.,  PL-llorton,  ."'.orris,  cjid  Gosg,   JJ.,   concur. 


X 


.^.-<:^-*-i*nH-^, 


i(y?. 


WILLIAL:  UASSE,  Respondent  v.  Jf,  U.  RISlEy  et  al., 
Appellsoits. 

(82  V/ash.   178,  1914). 

Appe^  from  a  judgroetit  of  the  superior  court  for  01<anosan  county, 
Peadergast,   J.,   entered  February  3,   1915,  upon  findings  in  favor  of  the 
plaintiff,   in  an^act^ou  to  quiet  title,    tried  to  the  court.     Affirmed. 

Ellis,   J. — In  1888,    one  Francis  ll.  Y/right  settled  upon  certain  lands 
in  Okanogan  county,  tlian  unsurveyed,    including  eighty  acres   of  land  no\/ 
owned  tiy  the  respondent,   and  referred  to  in   Gie  findings  as  the  Ilagee 
e%hty.     On  ".arch  5,   1889,    wlright  married.     His  \vife  resided  vdth  hira 
on  the   land  in  question  until  novenber  25,   1896,   v;lEn  sl-xi  deserted  him, 
left  Olianogan  county,  and  lias  never  returned.     Ihe   land  upon  which 
V/right  had  settled  remained  unsurveyed  imtil  IToverdber  9,   1896,  "but  was 
opened  to  homestead  sottlemejat  in  tia  year  1886,  upon  the   opening  of  the 
fonner  Columbia  Indian  recerviitioa,   etntbracing'  all  of  the   lands  belonging 
to  all  tlie  parties  hare  involved.     0&  Hay  16,   1898,   a  patent  was  issued 
by  the  Uni|:ed  States  government  to  ^'ri^t  upon  his  homestead  entry.      The 
patent  was  recorded  in   the   office   of  fiie  county  auditor  of  Olcanogan 
county  on  June  5,    1905.     In  Septoiaber,   1900,   'Vrii^t  commenced  an  action 
for  divoixse  against  his  wife,   resulting   in  findings  by   ftie  court  that  he 
was  entitled  to- a  decree  of  absolute  divorce  acd  tte  custody  of   their 
tv70  minor  children,   and  ordering  the  entry   of  &  decree  accordingly. 
These  findings  vjere  filed  ::arch  15,   1902,  but,  at  the  tiiBO   of  the   com- 
mencement   of  the  present  action,  no  formal  decree  had  been  entered  there- 
on.    Ota  December  19,   1906-,  '"*i^t  conveyed  the  ".ogee  eighty  to   one  John- 
son, by  a  deed  describing  himself  asid  aclQi07«ledged  by  him  as   "an  im- 
married  man."     !Ihis  deed  \7as  recorded  June  24, -1907.     On  July  16,    1908, 
Johnson  and  vrife  conveyed  the  "agee  ©aght^.'  to  the  respondent  TZilliam 
i.'agee.      This  deed  ;vas  recorded  July  27;    1908.      On  July  22,    1908,   7S:ight 
conveyed  to  the  respondent  "agee  by  deed,  describi:^  himself  aiai  acknot^- 
ledged  by  him,   as  "an  unmarried  man,  '  tiTe  water  ri^ts  and  right   of  way 
over   the  ^pellants'  land,  which  are  tl-E  subjects   of  c  cntroversy     in 
this  action.     Eiis  deed  was  recorded  August  17,   1908.     The  court  found 
that   ■■-r-ight's  wife  never,  at  any  time,    filed  any  claim  of  community  in- 
terests in  the  lands   in  question,  pursua^it  to  statute,  Rem.  u  Bal.  Code, 
Sec.   8772,    or  in  any  manner  attenjpted  to  comply  with  tlaat  statute.      It 
\v&s  stipulated  in  open  comt  that  the  respondent,   William  'lagee,   vra.s  an 
innocent  purchaser,  and  the  court  found  that  he  was  a  bona  fide  pvirchaser 
within  the  meaning  of  the  abore  mentioned  statute,   and   is  therefore  to 
be  deemed  and  held  the   legal  and  equitable  ov/ner  in  fee  simple  of  the 
lands   in  question.     Tlie  aourt  found   that  'Vri^t,  during  his  possess iocu 
of  the   land  loaown  aiE  the  Ilagee  eighty,   and  before  any  right  or   interest 
had  been  acquired  by  the  appellants  in  the  lands  now  owned  by  them,  had 
appropriated,  diverted  and  used  the  waters   in  controversy,   dead  had  ap- 
propriated a  ri^t  of  vJO-Y  across  the  appellants'    land  for  conveying  the 
water   onto  the  JIagee  eighty,   and  had  used  it  continuously  thereon  for 
irrigating  purposes.     The  respondent's  claim  to  the  v/ater  axd  ri{^t  of 
way  is  through   this  apprcipriation  by  V.right,  under  Sec.  2559  of  the  Re- 
vised Statutes  of  the  United  States,   providing  for  a  recognition  by  the 


108. 


coxirts  of  vested  and  accmed  vjatcr  rights,   and  section  2540,   declaring; 
"All  patents  granted,    or  preemptions   or  homesteads  allo-.7ed,   shall  "be  sub- 
ject to  any  vested  and  accrued  v;ater  rigjits,   or  rights  to  ditclcs  and 
reservoirs  used  in  coaaaction  v/ith  such  water  riglits,   as  may  have  been 
acquired  under,   or  recog-nized  by,    the  preceding  section." 

The  several  assii^mnents  of  error  present  tJree  principal  conten- 
tions:     (1)   fha-t  tlE  court  erred  in  sustaining  the  demurrer  to  the  ap- 
pellants'  third  affirmative  defense;    (2)   that   the   respondent  failed  to 
show  title,    in  that  V/right  was  a  married  man  v/ien  he  attempted  to  convey 
the  riagee  eighty   to  the  respondent's  grantor,  and  wlsn  he  attempted  to 
convey  tte  water  right  and  right  of  way  across  appellants'    land  to  the 
respondent,   and  his  v;ife  di£.  not  join  in  either  conveyance;    (3)   that  the 
court  having  found  that  '.tight's  original  mode  of  conveying  the  vvater  :/as 
over  the  sutfaco  of  the  ground  -itliout  fluiiie  or  pipe,    it  v-as,    tlierefore, 
error  to  decree  permission  to  his  successor,    the  respondent,   to  convey 
the  water  by  flume  and  pipe  line,   since  tie   latter  \;ould  constitute  an 
additional  servitude. 

Appellants'    second  contention  seems   to  us  equally  untenable.     Though 
the  findings   of  tlie  court  shov;  that  no  formal  deci'ee  of  divorce  severing 
the  bond  of  matrLinony  betv-Tsen  '.riglat  and  his   wife  had  been  entered  at 
the   time  lio  convoyed   tiio  :'.agc.j  land,    tx-.  v/ator  rights  and   ih^  ri.glat  of 
^■^.y,    thoy  also  shov;  that  it  -./as  ad.raittcd  by  stipulation  in  opc^n  court 
that  the  respondent  llagoe  was  an  innocent  purchaser  in  good  faith  and 
for  value.     Assuming,  ■vd.thovit  dociding,    that  'Vriglit's  v/ifc  would  have 
boon  actually  entitled  to  a  community   intorost  in  the  property  as  against 
a  purchaser  v;ith  notice  of  tho  marriago,   still,    the  facts  found  in  this 
caso  v;ould,  under  tho  doctrino  announced  in  Sac.lar  v.  ITicsz,   5  Wash.   182, 
ol  Pac.   630,   lObO ,   forever  estop  lier  from  claiming  any  interest  as  against 
tlac  respondent  luerc,  who  was  a  purchaser  in  good   faith  and  v/ithout  notice, 
£qg,   also,   Huhn  V.  J:illur,   5  V/ash.  405 ^    ::i  Pac.   1051,    C4  Pac.  152,   G4  An. 
Et.   858;   Schwabachcr  Bros,   a  Co.   v.  Van  Reypen,   6  'Vash.   154,   32  Pac.   1061; 
Canadian  &  AiiXirican  Iltg.   TruEt   Go.  v.   Bloomer,    14  Uash.  431,  45  Pac.  54; 
Daly  V.  Rizzutto,   59 'Tash.   52,    109  Pac.    276,    29  L.-  R.  A,    {U.S.)  467. 

TIio  judgrnent    is  affirmed.  v="e.^ —    "^  N - 

CroW;    C     Jo,    ChadwictC,   ::ain,   and  Gosg,    JJ..    concur. 


;>?-Uo 


.yL*'^4C^^-^^^^ 


V 


'■-^     W^^  Vv-s,        ^     V— I,, 


7 


*-^t\.^ 


^^^^■^^ 


^^a^C'i^o^^ 


J       ^. 


^..^^  jz^  ^.zr  ^^.  /^  .^^^  ^ 


^ 


y^^fi^^Cc^^^^^'e?       ^-i^^,^^  ^^;^?>fe^*'Ji«i-^^V^*-''^' 


C31APIER  II 


CITATIONS. 


What  is  the  nature  of  the  conraunity? 

Holyoke  v.  Jackson 

Brotton  v.   langert 

Oregon  Improvement  Co.  v.    Sagmeiatsr 

Re  Eyres  Estate 

Powell  V.  Pugh 

Swenson  v.    Stolz 

(a)  How  is  the  corcnunity  formed? 

Hatch  V.   Ferguson 

Engatrom  v.  Peterson  (1919) 

Slasor  f.    Slasoi'   (1920) 

Beyerle  v-  Bartsch  (1920) 

Ee  Wil"bm'«a  Estr>te 

Kromer  v.  Friday 

Knoll  V.  Knoll 

Coats  -9.   Ccatwq 

("b )  I  3  more  than  the  mere  fact  of 

marriage  necessary?       S  « «_      b^.^'q^ 

Schwabacher  Bros.  v.  Van  Reypen 

Sengfelder  v.  Hill 

Canadian  &  ijn.  Mort.  &  Trust  Co.  v.  Bloomer 


3  Wash. 

Ter.   235 

1  Wash. 

73. 

4  Wash. 

710. 

7  Wash. 

291. 

13  Wash. 

581. 

36  Wash. 

318. 

57  Fed. 

966. 

107  Wash. 

523. 

Ill  Wash. 

90. 

Ill  Wash. 

287. 

14  Wash. 

242. 

10  l%sh. 

621. 

104  Wash. 

110. 

118  Pac. 

441. 

6 

Wash. 

154. 

21  Wash. 

,371. 

14 

wash. 

491. 

HEBECCA  KI13LE:,   Rospondoat,   v.  DAVID  E.  ^ 

KlIBLE  AHD  rilHEEVA  KHIBLE,  Appellants. 

(17  Wash.   75) .1897. 

Appeal  from  Superior  Court,  Skagit  Ccrmty.— Hon.   Hom-y  T^jBrldo, 
Judge ,     Affirmed . 

IHiG  opinion  of  tlie  court  ^-as  delivered  "by 

Duntar,   J. — Tha_qxEStion  lying  at  the  thrcehold  of  die  caco   is  a 
jurisdictional    one,  viz.,   can  a  vdfc,   \-ho,  without  cause  has  tcou  abaa-   . 
doned  by  Ino^r  husband,  v/ho  poesceece   tlio  means  tlTcontribute    to  her' sx^-  '^'~'*-- 
^port,  mgiintai'n  aa  act~Ion"~f6r  maintonanco  uncoupled  mth,   or  independent 
of,    an  acTgion  f or'dl'ggfcb .     On  this  proposition  the  authorities  are  con- 
cedcdly~(r!infTlCtlng;^' In  cOfte  states  the  courts  refuse  to  entertain 
jurisdiction  of  eich  a  caso,   on  tiie  ground  that  alimony  was  at  the  com- 
mon law  only  an  incident  to  a  divorce  prococdiiig  and    that  aa  independent 
right   thereto  v.aE  not  acknov/1  edged,  and    that  tie  right,    if  it  exists  at 
all,   ie  a  creature  of  statute,  and  the   statute  which  provides,  as  dsjes 
our   statute,  for   a  decree  for  alimony  as  ancillarj''  only  to  the  divorce 
proceeding  must  "be  construed  as  e:^cludirig  thi    idea  of  an  independent 
maintenance,   on  the  theory  oajprcsscd  in  the  maxim  that  the  Expression  of 
one  excludes   the  others.     Such  view  is  held  "by  the  courts   of  Arkansas, 
Louisiana,  IlassachUEotts,  ilichigan,  ::issouri.   Hew  Hampshire,   How  York, 
Pennsylvania  aad  V/isconsin.     Other  courts  have  taken  the  view  that  the 
courts  of  equity,   c:corciEing  th;ir  plenary  powers,  v/ould  grant  alimony 
as  an  independent  remedy,''   in  a  caso  viiaro  divorce  v/as  not  sought.     Deci- 
sions  to  this  effect  have  "boon  made  in  Alabama,   Georgia,    Iov;a,   Kansas, 
Kentucky,  Maryland,  Ilississippi,   Hew  Jersey,    OhiO;  South  Caroline,    Texas, 
Virginia,   California  and  T/est  Virginia.      lu  still  otiier  stater ,    the 
ri gat  has  been  maintained,  but  by  statutes  providing  for  aa  independent 
action,  and  ia  sixh  cases  tlu  adjudications  arc,    of  course,  v/ithout 
value  in  determining  the  weight   of  authority  on  tiac  gonaral  proposition 
involved . 

I!r.   Bishop,  ia  his  excellent  v;ork  on  ".arrisgo.  Divorce  and  Separation 
(vol.   1,  See.   1595),    indulges  ia  -eio  following  caustic  criticism  of  the 
courts  which  havo  assumed  jurisdiction  of   the   independent  action: 

"In  spite  of  the  fact   tliat  the  law  consists   of  reason,  and  that 
reason   is  constantly  detecting  aid  pointing  oat  judicial  blunders,   by 
means  whereof  cases  wrongly  decided  and  false  doctrines  are  overruled, 
it    is  no  novel  thing  for   a  bench   of  jud-ges    to  accept  sone  thoughtless 
Utterance  of  a  predccessov  as  though  it  were  reason,   anc'-  decide  cases 
upon  it,  -.Tithout  a  particle  of  examination  to  see  %iioth,-!r  it   i£  just  or 
false.      Indeed,   through  this  sort  of  abnegation  of  thi  office  of  think- 
ing,  our  law  has  been  made  to  linger  aid   it  now  remains  in  the  shadows 
of   the  dark  ages,  instead  of  walking  onward  with  fiac   other  scic-iXes  to- 
ward  eio   li,^it  of  a  better  future.' 

In  spite   of  this  criticism,  hov^vcr,  wo  axe  incliaod  to  thiai  that 


110. 

tho  "bottor  rocDoning  it:   cxlvcncod  "by  tlu  courtc  criticicod,  ami,   a.c  thic 
it;  a  question  of  conflict  of  aithoiity,  -./o  fool  jui^tificd  in  deciding  in 
accordance  './itla  tho  i^xinciplcD  of  equity  and  reason  ai.  they  appeal  to  us. 

It  miglat  Tao  that  a  bliix'.  adherence  to  the   letter  of  the   old  En^lich 
decicionc  v/ould  prevent    fcj  c:cc-.-ciEo  of  jurisdiction,  although  the  Eng- 
lii^h  dccicionti  thcmtclvcc  are  conflic tinjj,   and  different  vie-.vc  are  ox- 
prccGOd  "by  eninont  Englich  jurittc.  on  thit  quotation.      In  Englaid,   there 
•./as  a  divicion  of  recponeibility  and  jurisdiction  in  divorce  and  alimony 
cases,   ".hich  is  noj,  under  our  tyctem  of  jui-i imprudence,  consolidat..d  and 
oxerciscd  in  a  Ljmplo  manner  ty  the  courts  of  equity.     For   instance,    in 
England  the  spiritpial  or  ccclesiat:tical   coui  tc  had  jurisdiction  to  grant 
cUvorces,  but    :fhDi-Q  such  divorces  had  heen  decreed  by  the   ecclesiastical 
coui'ts,  either  a  mensr.  et  thoro  or  a  vinculo  matrimonii,   the  courts  of 
chancery  eicercised  the   jurisdiction  of  granting  alimony;   and  the  history 
of   litigation  on  t:us    subject  cannot  be  read  v/ithout  forcing  tlx  conclu- 
sion that  the  cjurts  v/cre  constantly  Eeo1d.Hg  pretexts  to  grant  separate 
maintenance.     For  instance,   if  an  agreement  for  maintenance  had  been  en- 
tered into,    tho  courts  -jould  compel  tlx;-  performance  of  the  agroomeat    on 
tho  part  of   the  husband,  whore  he  refused  to  carx-y   out  his  contract.     The 
old  \a:it   of  supplicavit  v.as  resorted  to.      Tliif   proceeding  \ias  prosecuted 
by  th;  -./ife  -.Those  ti'jatm:.nt  by  lier  husband  made   it  dargerous  for  h;r  to 
live  v/ith  hiin.     Upon  this   fact  appearing,    fla.,-  court  v/ould  a-.vard  her  a 
ri^t   to  live   soparato  and  compel  tho  husbaix.   to  furnish  her  v/ith  a  sep- 
arate maintenance.     If   it  -.vere  necessary  to  fird  authority  at  the  common 
lav;  for  assuming  jurisdiction  in  a  case   of  tliis  Icind,    it  can  be   fcund  in 
the  execution  of  tiiis  w.^tt,    for  v/hatever  tech-nical   term  mij^t  be  appliod 
to  the  •'.A-it,   the  effect  v;aB    to  grant  a  separate  maintenance  to  a  v.afo  •.■Sxo 
could  not    live  v;ith  h-r  husband.      It   is  true  that,    in  tliis    instance,   she 
could  not  live  \7ith  her  husband  because  his  conduct  endangered  the  safety 
of  her  person.      The   particular  reason,   however,    that  necessitated  the  sep- 
arate domicile    is  not   infgortant.     The  practical   caid  controlling  fact  '.:a£ 
that  she  could  not  liv.:-  -.vith  him.      Tliis  fact   is  just  as  controlling,   v/hou 
she  is  prevented  from  living  -.'ith  him  by  the  husband's  abandonment  of  her 
and  his  refusal  to  live  -.-'ith  licr.      Die  practical  effect  on  tho  v;ifo   is 
exactly  the  same;  her  necessitica  are   the  same;   and   it  seems  to  us   that 
no  reasonable  distinction  can  be  c'jrav.'n  in  the  application  of  tlie   remedy. 

Another  expediency  v/liich  v/as  adopted  by  the  courts   '.Tas  to  concede 
to  the  abandoned  v/ifo  tho  right  to  use   fiie  credit    of  her  husband.     Sho 
v>aE  relegated   to   this   indirect,  unsatisfactory  and,    in  many  instances, 
inadequate  remedy.     She  v/as  allo-./ed  to  piorchase  necessaries    of  traders, 
"Jio  in  turn  could  maintr.in  an  action  against  tlE  husband  for  their  value. 
So  that  the   cuestion  of  separate  maintenance  v/as   after  all  litigated, 
burdened  anT.  complicated  v/itli   Hie  ri,'5ats   of   ttiird  parties,    involving 
questions  of  collusion  and  other  vexatious  questions  '.fiiich  must  necessar- 
ily arise  in  a  case   of  this   land,   to  say  nothing  of  the  improbability  of 
the  v/ife's  being  able   to  purchase  on   t!:e  credit   oi'  a  husband  -.ho  had  aban- 
doned her.     Etc    ort'dnaiy  merchant  -.touI-".  hesitate  to  dispose  of  hie  goods 
\'ith  the  chance  of  mal-iing  his   collGCtions,    if  made  at  all,   through  the 
agency  of  a  delated  and  expensive  litigation.      It  '/-ould  seem  to  be  much 
more  in  consonance  -,ath  a  Etraightfor^/•ard  policy  to  settle  the  question 
of  maintenance  by  dii-ect  cnit  botv.^en  the  i:artiet    interested,   and  v;here 
all  the  righto   involved  could  be  sottlod  in  one  action,   than   to  adopt  a 


111. 

circuitous  aau  iiuf-ii-ect  Diethocl  of  rcacliia^"  tLe  same  i^csult,   anC  a  metliod 
v/hicli  •/ouldTjo  liatlc,  at  least,    to  involve  a  multiplicity   of  vexatious 
suits.     It   is  coucodec'.  that  the  husbaiic".   ic  morally  aaf.   le;j-ally  otligatec. 
to  rjaintaia  liis  -.dfe.     If  this   ic  a  duty  '.jJiich  is   imposed  upon   fiie  hus- 
"baad  by  lav/,    it  ■becoi.ies   tlie  ri^it  of   Qie  -.Tife  to  receive  the  benof  its 
flowing  iVom  tlie  perf o-raaioce  of  the  doty,  aiotf.  slie  suffers  a  vvrong  \hen 
that  duty  ic  not  pevfonnod.     And,    if  it  is  true  that  equity  provides  a 
remedy  for  all   .vi-ongE,   a-  coui't  of  equity  ought  not  to  male   the  announce- 
ment tliat  it   -./ould  coqpel  an  abandoned  wife,    .iio  is  v7ithout  fault,    to 
seek  a  divorce  from  licr  hits  band  before  she  can  enforce  the  perf  oimance  of 
a  duty  -vMch  the  la;  imposes  upon  her  husband,   anc".  obtain  a  right  viiich 
the  law  guarantees   to  her,  viz.:      the  right  to  live. 

Hor  do  -./e  tliinlc  ■fiie  best   interests   of  society  -.rould  be  subserved  by 
such  a  construction..     It  -/ould  encourage  applications  for  divorce  anc'. 
necessai  ily  increase  them.     Again,    it  -jould  be  a  lever  in  13ie  hands   of 
husbands  vdio  abandon  their   -.Tives  without  cause — -,£10  desire  to  bo  released 
from  the  bonds   of  matrimony,  but  are  unable   to  procure  a  decree — to  compel 
tlieir  -.ives  to  seek  a  divorce,    a^e  benefits  of  vAiich  -.-•ould  accrue  to  them. 

In  addition  to  this  there   is  a  question  of  conscience  involved, 
llany  v/omeii  \;ill  be  fouac,  vAio  are  conscientiously  opposed  to  divorces. 
The  members   of  religious  societies  v5iich  anbrace  gi-eat  numbers   of  otir 
citizens  are  opposed  on  religious  and  conscientiotis  principles  to  di- 
vorces.    And  v/l-^en  -./e   enter  the  domain  of  fha  affections,    strange  as   It 
may  seem,  -.ve  find  liiat  affection  frequently  survives  neglect,  brutal 
treatment  and  abaaf.onraent .      In  such  a  case,    aie  wife  dcEc  not  desire  a 
divorce  from  he.  husbantl.     Eiat  is    the  one   thing  she  shrinks  from.     She 
believes  tlxit  tie  alienation  of  the  affections   of  her  husband  is  tempor- 
ary and  hopes  in  time  to  v.ln  him  back  to  a  resujirption  of  the  marriage 
relations.     But   in  the  meantime  she  must  live. 

\Thatever  may  Imve  been  tiie  difficulties  in  the  -.vay  of  the  English 
courts  in  respect  to   this  kind  of  em  action,   by  reason  of  ths   legal  ex- 
istence  of  the  •■/ife  being  merged  in  the  husbanT.,    those  difficulties  do 
not  exist  in  this   state,  T/here  the  "./ife  is  by  la.;  especially  emancipated 
from  th3  control   of  her  hxisbanf-j  -./liere  slie   ic   allov/ed  to  cue  and  be  sued, 
and  -./here  lier  legal   er.ictence  is  as  distinct  and  potent  as   Giat  of  her 
husband,    and  especially  -.Jhsre  her  interests   in  community  property  are 
ecjUeil  to  his. 

nor  do  -re  think  there  is   any  force  in  the  contention  that  the  stat- 
ute has  e:scluded  the   idea  of  a  suit  for  separate  maintenance,  because  it 
has  provided  for  temporary  anc'.  permanent  alimony  in  connection  with  di- 
vorce proceedings,     die  statute  -hich  s  i-nply  seete   to  control  alimony  in 
a  divorce  proceeding's  does  not,    in  cm*  judgioeiit,   intply  that  maintenance 
cannot  be  deci-eed  in  any  otliex-  case. 

As   to   the  merits  of  tlie  catse,    the  oiurt,   among  others,  mates  the  fol- 
lowing findings,    to-\/it:  __ 

"1,   ihat  on  the  25th  day  of  December,   1847.   in  Scotland  county,   in      ' 

the_stat'e_Qf  I'issouri,    Sio  plain.tiff  r.ebeccajajgbl^a^^thg  defendant 
TJiTiu  E.  Kimble  iatermaxried,  and  ever  since  have  been  and  na.r  are  husbarcl. 


and  -CTife;    that  i'ro.ii  said  25oh  day  of  Dcoera'bor,    1847,   uij   to  about   bte 
laonth.  01'  Jtme,    leSL-,    tllgjl  llvQd  coutin-gQusly-  t-qgatlinr,  ^^ept  ac   follows_, 
as  sich  huS-^aiic'.  aiad  ;.vife  in  the  s  tat.eg__a£-:-:if. s ourl  _a;ic-  lo-wa;   that  \*iile_ 
so  liviu;^  tqc-ethex   as  hucliaud  and  -.rife  there  -.-Gre  born  to  them  seven 
children;    that  c-.l^out  tie  yeai:,  1861  t:T3  defendant  D.  E.  Kiablo ,   -jithout  _ 
just  pause  aix'.    /ithout   -Kg e  consenj;   a-.i,"'  ^gr. inr.^-.   the  rrin    nf  this  plaiit- 
tiff ,    .    .    .    .  deserted  and  a'ba:idoned  tlii^  :j)lai2itil'i  aoid  their  caid  laraily 
and  .^oine__d_fcI]R    CF-A-n:-)'.-'.^f.  'Mnnvvr^^imTiT^f^  jri_j^]Tfwv^^       Of   Illinois;   tliat    ' 
suliseq^uent  thereto  this  plaiiitif  f  pm-sued^said  B-  S^JCJiablo   aad"~glscav^- 
ed  said  1),  ,3,   laiaDle  u.i£.  Illnux/iv  .lamble  "Tiv ing  tofyotlBr'TnTopen  "adulter^ 
at  01'  neai-   ths_-t£t,ia  of  'c^ivaac^^^a5^^^ia£5I^4;ate  a^jhat  tliereupon  said  D-   I! . 
Kim'ble,  upon  Cie   entreat::  of  thh  g  iJlaintif  f  returned  to  the  slrate  of  I!ic- 
couri  and  tlBi-eai'ter  lived  ./ith  this  "olaiatiff  as  her  husband,  and  fathei' 


of  hie  children,,   irj   to  niK.  until    %Q_Trg.n.r  isfiL;^..  -,;hen  said  D,  E,   Kimble, 
this  plaintiff  siad  thei.-'  said  feiaily  removed  to  the  state  of   Io\;a;    tliat 
abcat   tie  raont!i  ai  Jvuie ,    186",    in  the  state   oi    la.va,    the  defendant  D-   E. 
Kiinhlo-   agninr.h  ton  will   ,o-.x'.  y/i thout  the  consent  of  the  plaintiff  anJi 
\.'ithout  ju!:;t  cause,  deserted  and  aba^idoned  his  said  vme  and  ranuly,   leav- 
ing_thoni  destiti:te  aid  depQndent-Qn_tJ.ae  charity_of  j3tg7gj^tlg£]ag:5r~sa3^ 
desertion  './as  corxiittsd  lie   joined  defendant  lanerva  Ilimble  -ho  at  all 
times  lierein  nicntioned  ./ell  loxe-.r  tlaat  the^defenT-ant  D,    Z     Ihiiible  and~lilie 
plaint il^f^-ere  and  ai-e  husband  and  \7if9l  ' 

"2.    'jiiat  ever  since  said  desertion  and  na;  tlB   defendant  lias  -wholly 
failed;   neglected  aiid  leraced  to  contrihute  an^rtluug  to  the  support  of 
said   -dfo  and  fciJiily,  but  said  fanily  at  all  times  thereafter  \'ere  edu- 
cated,  supported  and  i-iaintained  by  the  S0I3  labor  and  effort   01  said 
plaintiff. 

"5.   giat    &ie  plaintiff  is   a -'.re ah  and  infirm  \7oman  of  seventy  years 
m_age ,   and  xoi    Zie  past  fifteen  yeai-s  lias  been  pliysically  inCOSQetent 
fo~provide  i  a-  her  o\rii  sifport,  but  has  been  livii:!^'  on  tlE  chai-ity  of 
Children  and  friinds,    ....  and  said  David  E.  Kimble  still  neglects  and 
refuses   to  contiibute  an;/-thin,?  iTliatever  to  hjer  sTp^ort.  ■ 


"4.    21aat  by  reason  of  liei  povertj^   said  plaintiff  .has  at  all  times 
herein  mentioned  been  depiived  o±  any  and  all  r.ieans  of  transportation  to 
this  state  fa   the  pu-'pose   of  enforcing  Iier  rfehts  herein,  and  never  at 
any  time  herein  mentioned  lias   zIiq  been  enabled  to  procure  means  to  pay 
her  e:rpGnr.es  in  coming;  to  said  state  of  Uashini'ton," 

Eb  coui-t,    in  substrnce,    f ur.thcr- .  lind5    tliat  David  Ximbl  e j._  in^_cpmpany 
ith  inHcr-va,-I4.-.]blc^laaBia- from -the-  state  g.    IllinoiE^an£L_E.ei.tl£d_injBie. 
count-y  of  s:g-G'jj.r    in  tl:!e  state  of  !i;^j}hin,ztiaji^:Jiere_  they  lxivei_been  singe 
andliQ-.v  are,    liyln,-;  to:.-eth3r,  claimin':-t3_be  husband  and  \7ife-     Finds  iH  *>  T 

tliat   f:yrc;firgTd2;i3l:  T.^vif''    ""iiiibl^  hn-r-    J^<'r•y'i>'^^''    ^•:t.o^1-b^3^-s_t-,i   r.n-nt--nvn-r,y  a:id 
that  he  lias  deec.ed  the   san^to  I^inerva  Kimble ,  and  tliat  he  did   tlie   same 
fyr-thgilTOsgg^3Sfrch&iiii.^-  tlie^  plai-itif-f , -aasU-tliat  Ilinerva  Zimble,   at-jthe_ 
tiri^'of  the  transfer  01    p-"-''"    ■'P--''    ftr.tiita-.    laia-.;  thrt.  tTiiR-defeadant  I)?vid.. 
Kimble  had  no  right  to  convey  the  saiae.__3ie  eighteenth  finding  of  fact 
is  as   follows: 

•Miat  about   tha  year  1876   tliis_  plaiatlf  f    ■'^■R  infnmRd    that  defendant 
B-  B-  KLnble,  her"^a.ld  lUTSbSS.  _a^:ir^ie  defendant  Ilinerva  Kimble,  \7si-e 


115 

tojp.t.'iov-i^-fel^e-g^tate-  af -raekiagtoa^_ia^.ci.  imtll  tho  lit]'  day  of  ::ay,   1695.^ 
;plaiatifi'  has  not  tal:en  steps  to  assert  lici   cl:iims  as  '.If':,  or  :j  ._Ei^  -^^ 

K^51e~Ia  the  st'ate~of~Trasliin:;ton,  1aut_^jha-Coa£t,.-f  1.nds_tl;at-at  no  tiiae 
Jiox-ein  meatiojiecl  uiatil  tlie~trip:-l  of  t:ii  r.  c-fF^-  >'?'«  l/lr'L-i.nMJ:''''  "b e enj^ossos c- 
ec".  Ox'  the  means  V';liei-e\;ltli  to  i>rocux'e  traasipor t-.tion  to   tliis   sto.ta  xor 
Hie  i:>ur^ose  of  asse-'tiug  liar   saic"'.  cl^in  or"Tor''aay  otliei'  ptirpose  '/liatevei . 
Thz^^r~l.\e  ''..'as  c.ux"iix;  r.ll  of  sziC   tine  unable   to  c.o  so  Toy  leason  of  her 
l^oveity,   living  dv.rin^  all  of  said  times  doi^^endent  on  tiie  cliarity  of 
f i  ier-/.::  lOr  her  su;,j:,^ort.'' 

Tho  court,   as  conclusions  ol  la'-/,   finds   that  the  plaintiff  and  D.  E. 
Kimble  have  ^oeen  since  the  25th  day  of  Deceinber,   1847,   and  nov/  are, 
husband  and  wife;   that  the  lands  accuired  are  tloe  property"  of  tits 
cor.T.vanity  consictins  of  defondcnt  D.  L.   I'Hable  and   cl:^  plai'itiff:    that 
all  deeds,  conveyances  and  instruments  purporting  to   co:-C'-cy  ^jiy  of  said 
lands  to   the  defendant  ."iinorva  Kiaole  "^t/  ss-id  D.  E.  XiuiDi:-  r,"_e  -/itho-it 
consideration,  fraudulent   2nC.  void, and  should  "be  so  declared,    that   the 
Said  defendant  D.  E.  ICinble  had  no  ri^ht  ot  authority  to  convey  tlie  same; 
that  the  plaintiff  is   entitled  to  iiiaintenonce  and  support  from  her  said 
husband  and   that  OlSO  per  year,   as  Ions'  as   she  lives,   shouJd  be  decieed 
to  her  as   such  reasonable  £u..i  foi  hor  suppoit  and  maintenance;    th:t  in 
order  to  i.iaintain  this  action  it    /as  necessary  for  her  to   euploy  counsel; 
the  couit  finds  ^150  as  a  reasonable  attorney's  fee   to  be  allo/ed  her 
for  the  purposes  hereinaf  ores  aid.     Sie  judgment  follo-./s  in  accordance 
v/ith  the  findings. 

2he  fincidnss  of  fact  are  i-.:ll-    justified  by  the  testiaony  and,  "/o 
thin!:,  sustain  the  conclusions  rec.ched  by  the  court.     Tna  separate 
ansY/eis  of  t::e   t'/o  defendants,  David  Kimble  and  hinerva  ICimble,   raise 
substantially  the  s^jrne   isGues.     Chere  is  no  principle  of  estog^el  vdiich 
can  be  applied  to   this  case.     So  fai-  as    the  question  of  maintenance  is 
concerned,   the  action  is  be.sed  on  fee  responsibility  of  the  husband 
grov/ing  out  of  the  raarriajje  relation,     b'e  think  tLie  mai-riage  betv/een 
the  plaivitiff  aud  defendant  David  lamble  -.-aE  sufficiently  proven,   and 
t!ie  r.iaj:ria:;e  relation,    onca  established,   continues  until  it  is  dissolved 
either •bj''  death  or  deciee   of  a  coinpetant   judicial   tribu^n^l.      ihe  "'ife 
being  faultless  at  the  time  of   the  abaxidon-nent ,  any  indiscietions  '..hich 
she  may  have  been  guilty  of  af ter-./a:;dE  -..111  not  relieve   the  husb~nd  of 
thif  responsibility,   and  he  certainly  cannot  seize  upon  tl-.e  fact  that  she 
has  not  asted  hin  for  maintencnce  for  ^,  c^uarter  of  a  centrjrj'-,  during 
■ohich  time  she  hat^  unaided  by  him,    svipportec.  herself  rnd  children,   as  a 
pretent  for  avoiding  his  responsibilities   in  the  future.     Sie  court  might 
veil  have  stop.ed  -/ith  the  proof  of  mairiage  and  abandonment,  without 
considering  any  circujnstaiices  '..'hicli  intervened  bet  re  en  the  time  of  the 
abandon-aent  „nd  the  bringing'  of   this   action. 

ITor  do    /e  thinlc  on   tlie  other  proposition,  viz;    the  right   to  have 
the  deeds   set  aside,    that,   under  the  circomstances  of  this  case,    there  is 
any  room  lor   ohe  ai-^-lication  of  the  doctrine  of  estoppel,  laches  Oi.   stale 
demands;  nor  lis  s   the  statute  of   limitations  run,   even  had  it  been  prop  erljr 
j/leaded.     llarriago  has  been  proven  a-ud,  never  having  been  annulled,   the 
property  accunulated  -?as   oomaunity  i roper cy,   and  the   co:Xiunity  '.'as  the 
plaintiff  anc'.  defendand  David  Inmble,     David  could  not  belong  to  two 
coniiiunities,   one  composed  oi  himself  aix^  Kebecca  anc".    tlie   other  composed 


114 » 

of  himself  ajxl  Ilinerva.     Our  community  prSperty  laws  are  not  co  promis- 
cuous  as  this-      Of  course,   any  relations  v/liicli  he  entered  into  -.ith 
liinerva  are  absolutely  illegal.     I'inerva  cannot  invoke  the  doctrine  of 
estoppel,   fca'  tlie  evidence  shows  tliat  she  -jas  a\;are  of  the  marriage  re- 
lations e::isting  "between  David  and  Rebecca,   no t-.vlth standing  her  assertion 
that  she  had  boen  infoiraed  "b^-  counsel   tliat  no  cvah  relations  existed. 
The  deeds  from  David  to  Ilinerva,  being  deeds  to     community  real  estate, 
were  illegal  under  the  statute    (Gen,  Itat.,  £ec=   1400),    being  conveyances 
of  the  husband  not  joined   in  by  the  v/ife.      Ihe   testimony  shows,    in  addi- 
tion thereto,   that  the  conveyances  were  fraudulent,  being  made  for  the 
purpose   of  transferring   tl:3   ccninunity  property  from  the  true  v;ife   to  the 
pretended  one ,   and  defendant  I'.inerva.    being  a  party  to  the  fraud,   and  tiie 
coiJrt  finding  in  acccrdance  -Ith    the   testimon;,r  tliat  the  v/ife  prosecuted 
her  action  to  set  aside   these  deeds  as  soon  as  slie  could  after  she  had. 
Imo'./ledge  of  tte  conveyaiices,  ; 'e  thinir  the  court  properly  overruled  the 
defendants'    denurrers  on  all  tlie  points  urged.      If  defendant  liinerva 
Kimble  has   anjr  claims   against  the  community   for  advances  made   to   it,   such 
claims  can  be  determined  in  a  proper  case,    but  they  are  not  proper  sub- 
jects of   investigation  in   this  case. 

Hie  allo\7ance  of  s/lSO  per  year,  under  tlie  circumstances  of  this  case, 
vvB  thinl:  an  e::ceedingly  nodest  one,   and  the  attorney's  fee  is  reasonable. 


Tlie  judgment  \all   in  all   things  be  affirmed. 
Anders  and  Reavis,    JJ.,    concur.  'F'«»" 


\"\. 


Gordon,   J.  —  I  do  not  thinir  an  action  for  maintenance  -all  lie  and 
thei-efore  dissent. 


'^c^^^^^^  ; 


^'^'--^^'i^^        -— _-^^^.^;;^t^    f 


<^^ 


It' 


115. 


ELIA  C.  nO'HiSY,  Appellant,  v.   Jdlll  U. 
nomrf,  r.espondoait . 

(  \\-\      vu'a^-.  W  .    3-   5  S    ) 
(17  Dec.   loS,    1921) 


.-Vtrt>-. 


Appeal  from  a  judgment  of  the   superior  court  for  Snohomish  county, 
Alston,   J.,   entered  Ccto^er  11,   1920,    in  favor  of    fiae  defendant  upon  his 
cross-complaint,    in  an  action  for  divorce,    tried  to   tlie  court.     Reversed. 

Tolmau,   J.  — Hie  appellant,   as  plaintiff,  Tarousht   this  action  seek- 
ing  a  decree  fa-  separate  maintenarce,    and  respondent,    in  addition  to^ 
defending  against^that^cl-axm,— by-cr-osTS^TJrapiaint   sought  an  absolute  di- 
vorce.    Prom  a  decree  granting  to  the  respondett   a  divorce  upon  his 
cross-complaint,   this  appeal  is  prosecuted. 

Appellant  had  "been  previously  married  and  divorced  from  her  first 
husband,  and  hy  the  decree  in  that  case  shs  had  "been  given  the  custody 
of  four  minor  daughters,   and  alimony  of  075  per  month.     Upon  tlie   oldest 
daughter  "becoming  of  age,   tliis    alimony  had  "been  reduced  to  $60  per  raontii, 
and  upon  her  marriage  to  respondent,    the  alimony  v/as  fur  tier  reduced  to 
$45  per  month.      ThQ  parties  hereto  had  "been  acquainted  -vith  each   otlier 
for  a  num'ber   of  j^ears  prior  to  tl:eir  marriage  on  I '.arch  25,    1918,   and  re- 
spondent v/as  familiar  \vith  all  tlae   conditions.     Shortly  after  the  mar- 
riage,   tie  nev  family  removed  from  Seattle  to  Eiclnnond  Beach  to  "be  near 
respondent's  place  of  emplo-rment,   vhere  the3''  purcloased  a  small  cere   tract 
with  the  intention  of  "building  a  home  thereon.     The  home  v.-as  never  built, 
but   soias  Ol,100  -.ras  paid  upon  tl-.e  pui-chase  price  of  Hie  acre  tract,  and 
$600  or  $700  spent  in  i.-nprovGicent  and  prepai'atiou  for  building,   and  at 
the  time   of  the   trial  belov.-  there  v.'a.s  ov/ing  on  the  purchase  price   of  the 
land  something  over  §1,400,   a  portion  of  vhich  -ras   overdue. 

At  the  time   of   the  riarriage,   appellant  hac'.  nothing  but  a  modest  sup- 
ply of  household  furniture,   aix":    the  alimony  before  referred  to,  -./hile 
respondent  had  about  OSjOOO  iJi  money  c::^:.  securities,  and  has  since  been 
steadily  employed  at  good  -wage,    ?JiC.   is  noi'.v  earning  $150  per  month.     ~o 
serious   trouble  develaped  until  ITovem"ber,    1919,     lien  differences  arose, 
chiefly  because  respondeat  claimed,   zaC.  no  doubt  honestly  believed,   the 
family  was  spending  too  much  money.     As  a  result  they  ceased  to  coliabit, 
and  thereafter  occupied  separate  rooms  until  Januaar;--    1920,  -,dien  respond- 
ent left  the  home  and  tiie  family,    talcing  -vith  him  all  tlie  ready  money  and 
leaving  nothing  for   Qie  support  of  the  family  save  a  cov/,  -viiich  he  liad 
theretofore  presented  to  the  v/ife,    and  so.-e  pigs  and  poultry-;   notifying 
the  merchants  -./ith  whom  taiey  hac.  heretofore  dealt  that  Is  -.,T3uld  not  be 
responsible   for  debts  contracted  by  the  wife.     For  some  cizi  months    there- 
after the  famil3^  e::iEted  upon  tlie  alinon*-  from  the  v;ife's  forr^er  husband, 
the  proceeds  of   the  livestock.,   upon  credit,   and  a  ver3'-  small  contribution 
made  ty  respondent   tQ-;ards  her  support,    tirrough  the    intercession  of 
others.      Olien,    lier  means  being  e:^lIlausted,   and  a  very  considerable  grocery 
bill  having  been  incurred,  tJhich  is  still  unpaid,   she  brought  this  action, 
asking  for  (65  per  month  as  separate  maintenance,   suit  money,   attorney's 
fees,    aud  other  relief. 


116. 

The  si2t  of  tho  rccpondent':?  croes-conrplaiat,   and    of   the  evidence 
offered  in  supx^ort  of  thete   allegations,   is   that    the  v/ife  was  v/ithout 
affection  for  tie  husband,  married  him  as  a  means  of   obtaining  cupport 
for  herself  and  her  diildren;    tliat  she  spent  too  much  money,    though  no 
particular  instsnces   of  e::travar;ance  are  shown,  and    thjit   they  v.Bre   in- 
corapatilale    in  temperament.      The  cliief  argument  advanced  in  support   of 
the  decree   entered  "belov;  seems  to  be  that  the   recpondent  liad  j55,000  v/hen 
he  married,  had  earned  nearly  as  much  more  since  the  marriage,   and  had 
left  at   the   time  of  the  trial   only  some  $600.     Hence  tlB  conclusion  is 
drawn  that   the  -.vife  \/as  concerned  only  \d.th  the    obtaining  of  all  he  l-^ad 
and  could  earn.     But  v,hen  it  is   remembered  that  over  §1,700  '..•as  paid  on 
the  purchase  of  the  land  and  tlie  preparations  for  building,   the  force  of 
this  argument  is  considerably''  lessened,   and  --.iien  the  higli  coc-t   of  living 
during  tl'e  time  since  tlxj  maaxiage  is  also  considered,    to  say  notliing  of 
the  ill-health  of  the  v/ife  and  one  of  her  daughters   and   the  e:rpense   at- 
tendant thereon,   these  figures  fall  far  short   of  convicting  the  wife  of 
undue  extravagance,    or  of  a  design  to  fleece  the  husband  of  his   accixrau- 
lati  ons . 

It  may  be   tihat,  -..hen  a  man  marries   a  v^oraan  v.ith  four  dependent  daugh- 
ters, he  does  not  become  bound  to  do  for  the  daughters  all  that  he  might 
cheerf^Jlly  do  for  his  o\m,   -yet  he  does  assume  a  raoial  and  a  legal  respon- 
Eibilit^'  to  assist  the  wife  and  mother  to  a  reasonable  extent  in  provid- 
ing for  her  minor  and  dependent  children  prox^erly,    a;ad   in  accordance  ^/ith 
his  means.     "7e  find  nothing   in  tlie  record  }:iere    to  convince  us    that  re- 
spondent was  called  upon  to  do  more. 

"Hie  allegatioi^   of  e^e  cross-complaint,  and   ftB   evidence  viev/ed  from 
the  standpoint  most  favorable  to  him,   fail  utterly  to   show  that  the  re- 
spondent has  any  ground  -hich  can  be  recognised  as  siil'ficient  to  entitle 
him  to  a  cUvorce.      If  in  these  days  evoiv   fanily  \vhich  spends  too  rnuch 
money  is   to  be  broken  up;    if  coldness,    or  even  carcasm,    or  both,   follov/- 
ing  upon  differences   of  opinion  upon  financicl  matters   is  to  be  recog- 
nized by  t]:ie  courts,   then,    indeed,    the  homes    of  America  are  in  dnnger. 
The  decree  should  have  been  denied  under  the  authority-  of  Ellis  v     Ellis, 
77  ^'ash.  24-7,    137  *^ac.  4513,   :i.nd  Cie  cases   there  cited,  end   tie  parties 
should  1-uj.vc  been  admonished  thc.t   it  is  tie  duty   of  both  husband  and  -.Tife 
to  bear  and  forbear  fa-  tl-eir   o-.m  best  good,  aad   for  flio  good  of  the 
state  and   of  society  generally. 

RespondoQt  having,    ."ithout  sufficient  cause,    left  fha  appellrJit 
v.ltaiout  adequate  means  of  support;    she  is  entitled  to  separate  mainten- 
ance.    Loeper  v.  Loepor,   81  '.ash.  454,    142  Pac.  1158. 

A  careful  consideration  convinces  us  that  at  this  time  appellant 
will  require,  and  respondent  is  able  to  pay  to  her,  fifty  dollars  per 
month.  v;e  also  find  that,  in  viev/  of  the  husband's  present  financial 
ability,    on  allowance  of  $150  as  attorney's  fees  should  properly  be  made. 

TtB   judgirant  v/ill  be  reversed,   and  the  cause  remanded  with  direc- 
tions to  enter  a  decree  requiring  tl'e  respondent   to  assume  responsibility 
for  the  groceiy  bill  contracted  since  his  desertion  of  his   -Ife,   and  in 
addiifeion  that  he  pajr  to  her  ')50  monthly  as   separate  maintenance,   and  $150 
as   attorne"'£  fees,  v/ith  leave   to  either  party  to  apply  for  any  modifi- 


117- 


cation  waxranted  "by   a,  chs-use  of  conditions, 
Reversed  and  remanded. 


H  cs 


PI 


Parker,   C.   J.,  Ilitchell,    Fullerton,   and  !:ain,    JJ. ,    concur, 


^<. 


^^^y^yz-t^'-L^ 


118. 


iHILlP  A.   lilTUC-;  Res...oadeat,  v.  DORA  i;.  KRUG,   APl^ellaat. 
61  "/asla  461,   1914. 


Ai>:)eal  fro..;  a  judg-moat  of  tiie  su^^erior  coxu-t  for  Epofc^ae  couaty, 
iiunelve,  J.,   eatered  "^i-il  18,   1910,   upoa  findiags  ia  favor  of  tlie  :jlaia4<". 
tiff,   iu  aa  action  for  a  divorce,   after  a  trial  to  the  court.     Peve^-sed. 

-^;..IN,  J.— 21ae  '_.vu-jOhQ  of  tla,^5  r.ccioa  v/as  to  secure  a  decree  disEOlv- 
ias  the  bonds  of  ra^trimoaj^  aad  ^uaulliag  a  poEt-au:jjtial  property  agi'ee- 
meat  aad  settlemeut  ''oet-./eea  the  i>artiGS.     She  cause  Wi;.£  tried  to   tie  court 
without  a  juiy.     JudGiaeut  vas  entered  grcatiag  a  decree  of  divorce  to  the 
plaintiff  aad  annulling  iSie  pi-operty  agreement.     The  defendant  has 
appealed. 

"She  Parties    to  the  action  -je-.-fl  ii.T.-viPf:   i^i  • 'hi  t-v-n  r-^ount^ '/ashingtoa, 
oa  the  9th  day  of  July,   1907.     ^nereaftor,  -dth  the  e;:ception  of  tvra  "or^ 
thjree  years  residence  in  Stevens  county,    they  residec*.  contiauously  ia 
Spolcane  coijinty.     On  the  2d  day  of_ijcy,   1912,  a  separation  and  property 
agreeraaat  \/as  entered  into,   signed  'bv_fce_^rti_ef ,   "^"id  duly  aclcao-./ledged, 
Ifiis  agreement  recited  that   tlie  parties   thereto  had  separated  aiid  diESOlv- 
ed  the  max-ricge  ralations'iip  and  comuinity  interosts7~3ad.   3gTong"OtI-ier  - 
fniiy^s,  provic.ec  that  alJL   tlie^property  './hich  than  stood  ia  tLi"e~CTang~af 
the  wife  should  he  and  become  her  sole  and  separate  property,  aad  that  all 
tne  property  -;hich  at   t]ai?.t   tirne^stao^J-LuQie  aaae  "-f  tinf>  hushfirid  should 

irkQ\/iRfl    hf^^ij^-     gn1[Q    r-n?!     f;sp:---:;i^±A-pjrnp A-.M-.^r. 

The  findings  of  tha  trial   court,   so  far  as  here  germane,  are  as 
f  o11o-i;e  : 

■'(L^)      Ih?  t   thxis  defendant  hL,s  trei-.ted  this  plrintiff  in  a  cruel  aad 
i'lHiurnaii  i^anner  •cji'^.  has  hearoed  u.joa  her    personal   iadic:;nxin:e£'read:eTtTig~he'l' 
life  b-ardensome,'   in  that  diiring  and  since   tlie  laontli  of  June,   1911,   aad  up 
to  and  inciuc.ing  th_e  ,aonth  of  bept ember,   1912,    she  has  Oj^euly,  notorious- 
^;^j_c^ontinuou^ly  and  improperly  con&oited  end  Icept  coapan;/  with  oae 
Herbert  g".  Tiisi-ig^    /ithout  the  consent  oi'  •:Jl>:intiff  and  for  a  -^'reat 
portion  or  sjic.  ti^ae  "..ithout  his  l^O'vledge,    ^nd  that  sucZi  irapro_.  ai    con- 
ducT~i70nb;ii;Lu."'.  oi"  rrec^uant  visits  :.i-:;de  by  &e  said  Rising  to  defeadcnt 
at  plaintiff  c^id  defendant's  home,  dcsriag  plaintiff's  absence  therefrom, 
aad  of  said  defendant  meeting  said  Tasiug  at  various  times  a^>'ay  fro.,:  her 
home,   for  the  purpose  of  improperly  associating  end  consorting  with  him; 
that  the~iald  Tnjfund^zJt  c.aceived  plaintiff  ia  that  sae  stated  to  hlm^v/hea 
going^a.Jay  tliat  sne^  ^vas_jrisitin:^"a~rady  fri&atl  wliem-  she  de&i^3a.ted^_aa__an 
"•^Qldmaid,'   ';ho  did  not  \.iEh  or  care  ior  the  society  of  mea,   and  that  the 
saiSTplain'titf  did  not  le;rn  or  I^q-j  that  plaintiff  '.'■o.s  deceiviag  him  ia 
this  regard  until  on  oi    about  tho  firct  of  June,  1912,   and  that  such  con- 
duct resulted  in  _l:.i:itill  aad  defendc^it   separating  shoitly  after  the 
first  of  Hay,   1912,   aad  thereupon  defendant  reraoved  from  her  hame  ia  the 
residenca  dittiict   in  the  cit'y  of  !ipo!:ane,  '.''ashiagton,   aiid  tool:  aa  apart- 
meat  ia  a  do'..a-to  ai  apai-tment  house,  -./he-a  she  would  not  attract  public 


119. 

notice  iu  veccivin:;;  tlie  attontionc  of   t'.ie  zc.iC.  Rising,   end  tho.t  alter 
removiu^'   to  c-aicL  location  slae  c.id  roceive   tlie  attentions  of  tlae  said 
P.ising,   am?-  did  thereafter  openly,  notorioucly,  continuously  and  imi5roi:)er" 
ly  consort  -atli  hira,   ond  e£:j>ccially  so  ui^^on  the  15th  day  of  June,  1512, 
at   the  houi    of   9:50  i-" .  ::. 

•'(5)     That  at   Cie  time  said  contract  -.-as  entered  into  and  the__ 
property  divided  "air'aToresaigj^'Lalri  plaiiir.irr  \vn.s  tOtfiHy  ignorant  of — 
defendaaF's   improper  acs"ocTatTon  with  tlio  said  TTRrvfivt  F.  Fasin.'?.  as  here- 
inbefore  found,  a:id  did  not~l-:no\;  that  tl^e  defencL?nt  -./as  associatins,   keep- 
ing company  aiid  consort ir^-  -.Ith  him,   and  furtlier  thrt  the  said  plcintiff 
did  not  learn  of  such  association  of  the  said  defendant  and  tlie   said 
Rising  until  on  or  aliout  the  first  day  of  June,  1912,;   that  by  reaso::  of 
plaintiff's  lad:  of  laao'.;led.ge  concerning  the  said  defendant's  associe.tion 
with  the  said  Rising  as  aforesaid,  and  bf  her  not  giving  hira  fulllin- 
formation  of  the  S£:me,    the  said  defendant  practiced  fr::ud  and  deceit  on 
this  plaintiff  in  the  procuring  of  said  contract   to   such  aa  e;:tent   that 
the  same  is  not  valid  and  hinding  upon  the  plaintiff  herein,   and  should 
be  set  aside,   annulled  and  held  for  naught." 

In  the  decree   the  court  made  a  property  all0"v;once   to   the  vafe,  hut 
this  was  in  a  less  a.nount   than  that  vhich  she  v/as   to  have  under  the 
contract. 

The  sole  question  here  for  deter/nination  is  v.hether  the  trial  court 
erred  in  vacating  and  setting  aside  the  post-nuptial  property  agreement. 
The  facts  found,  -/hich  are  above  set  out,   are  sustained  by  the  evidence. 
Hie  inquiry  then  must  be  directed  to  the  question  whether  the  facts  found 
justified  the  couit  in  vacating  anc\  annulling  the  va-itten  contract  signed 
by  the  parties. 

Bothe  parties  seem  to  be  content  ">/ith  the  decree  so  far  as  it 
dissolves  tlie  bonds  of  matrimony.     Tlie  question  is,  v/hether  the  failui-e 
of  the  wife  to  disclose  to  her  husband, *at    the  time  the  property  agree- 
ment was  e::ecuted,  her  previous  association  with  Pdsing  constituted  fraud 
Vt^iich  inhered  in  the  property  settlement  contract.     Both  the  appellant 
and  the  respondent  agree  that  if  the  contract  is   to  be  annulled  it  must 
be  on  the  ground  of  fraud.     It  is  a  faiiiiliar  rule  tliat,   in  order  to  estab- 
lish fraud,   it  is  necessary  tlia  t  the  evidence  be  clear  and  convincing. 
Hie  conduct  of  the  ^afe  subsequent  to  t:i2  ejiecution  of   the  agreement  can- 
not be  considered  as  affecting  the  validity  of  the  contract,    encept  in  so 
far  as   sucii   conduct  would  serve  to  e::plain  or  interpret  her  previous  acts. 
2!lie  only  fraud  claimed,   or  found  by  the  trial  court  to  e:;ist,   consisted  in 
the  failure  of   the  v/ife  at    tlie  time  of  the  e::ecution  of  the  contract   to 
raahe  l-aao\.ii  to  her  husbrnd    tlia.t   the  had  previousl;;  been  associating  v/ith 
Rising. 

The  contract  recites   t!i:t  tlie  parties   thereto   "liave  separated  and 
dissolved  their  marriage  relationship  and  community  interest."     It  is 
also  provided  that  Cio   "party  of  tlie  first  part   (the  appellant)  hersby 
\7aives  and  releases   any  and  all  claims   or  demands  for  alimony,   suit  money 
and  attorney*'    fees  which  she  may  have  ag  inst   the  Paxty  of  the  second 
Part  in  any  action  of  divorce  which  she  may  prosecute."     ihe  parties,  by 


.  __^    ,£_ J 


120. 

their  contract,    settled  their  property  rij-htc,   recitecl   that  they  had 
separated,  aix'-  discolveu  their  marriage  relationrhi^.,   ciid  reco/jniied  that 
a  divorce  action  might  lie  instituted.     The  hustand,  at  this    time,    it  is 
true,   did  not   loio-.r  of  the  vife's  previous  association  v/ith  Rising,  hut, 
aside  from  this  dareliction,   ti^ere  must  have  been  in  his  mind  sufficient 
grounds    to   justify  the  contract  Vi^iich  he  executed,     ^,/hile   the  evidence 
shows   thi'.t  the  husbcnd  v/as  not  fully  apprised  as    to    the  shortcomings   of 
the  v.'ife,    it  yet  does  not  appear  tliat  tlie  derelictions  of  tbs  -./ife,  • -hich 
\/ere  unknov^n  to  him,   are   sufficient   to  justify  tlie   setting  aside  the  con- 
tract on  tlie  groimd  of  fraud.     Had  the  contract  been  e.;ecuted  upon  the 
asstuBption,   or  upon   the  reasonable  srounds   tor  belief,   th£-t  the  marriage 
relation  \/ould  be  continued  after  its  execution  as  before  then,   an  en- 
tirely different  question  \rauld  be  presented.      It  may  also  be  tliat  one 
party  to  the  marriage  relation  might  so  far  disregard  its   obligc.tions 
that  a  contract  entered  into  -.vithout  ";niov/ledge  of  such  faithlessness 
would  constitute  fraud,    even  tliouja  Giere  were  sufficient  Imox.'n  grounds 
which  justified  the  separation  and  settlement;  but  if  there  be  sr^ch  a 
rule,    the  facts   of   tl:Lic  case  do  not  come  within  it.     Giving  the  evidence 
of  the  facts  v/hic-h  occurredprior  to  tl-je  e:cecution  of  the  agreement   their 
severest  interpretation  against    tl:e  appellant,    they  -./ould  yet  fall  short 
of  showing  positive  immoral  conduct.     "Zhat  thQ  appellant   associated  \/ith 
a  man  not  her  husband^   and  that   this  was  not  laaown  to  tr.e  respondent  at 
the  time   the  contract  '.'as  executed  is  plain;   but  the  contract  being  ex- 
ecuted ^;ith  viev;  to  a  separation,   vhich  occurred,   and  ultimately  a 
divorce,    it  would  seem  that  the  conduct  of   tlie  \/ife  v/as  not  a  fault   suxfi- 
cient   to  constitute  fraud  \7hich  inliered  in  the  contr^ct.     -Ihe  authorities 
cited  in  each  of  the  briefs  have  been  examined  with  care,  aixL  in  none  of 
them  ic    the  exact  question  here  presented  considered. 


die  judgment  vlll  be  reversed,  and  the  cause  remanded  v.-ith  direction 
to  the  superior  coiirt  to  enter  judgment  in  accordance  with  the  view  here- 
in expressed. 

Crow,   C.   J.,  i:iliE,   aoid  Gose,   JJ.,   concur. 


JCfriUPE  Ho  liGRRIS,  Ap:j)ellant,  v.  i.::.YiT.-J?Il  n^2::JlQK,  "Respondent. 

(42  ■;aGla.  480,1906) 

Appeal  from  a.  judgmeut  of  tlie  cupi-ior  coiu^t  for  Lincoln  county, 
'./arren,  J.,   entered  iTove;:i"be.-  17,   1905,    iu  favor  of  t'^edef  endant ,  upon 
vdthdrav/ing  the  cause  froa  tlieconsideration  of  the  jury,  after  a  trial 
on  the  merits,   in  an  action  for  alienating  the  affections  of  a  •■/ife^. 
Revel sed. 

Dun"bar,  J. — Ihis   is  an  ^tifi.iJjrQii6p-t--bjr  =^3@-^^->ellant  .sgai4st__the^ 
respondent,  fjDr__dama{fq£_J^_alien£tin£,-  the  affections   of  his  wife.     At  "" 
tiie  close  of  plaintiff's  testir.iony,  defeiidaiat^s^rabtToh  for  a  nonsuiL  -v/as 
denied,  and  at  the  close  of   tale  case   tlae  defendant  challenged  the  legal 
sufficiency  of  the  testimony,   and  also  moveec  the  co;irt  for  en  instructed 
verdict.     Iho  court  v«ras  of  the  opinion  that  the  proper  procedure  v/ould  "be 
to  discharge   t5ie  jury  and.  enter  judgment,  which  it  proceeded  to  do, 
entering  judgment  in  favor  of  t3ie  defendant. 

In  spea^cing  of  the  case  of  Claris  v.   Greet  Northern  R.  Co.,  57  '/ash.. 
537,   79  Pac.   1108,    the  coiu't,    intimates  that  it  -/as  its  duty   to  dischai'ge 
the  jm-y  in  this  case,    cuid  decide  tlie  case  on  the  \/eight   of   t'ne  testimony, 
making  the  follovanf?  statement.      "I  vdsh  you  v/ould  read  that  Glar'tc  case 
all  tlirough.     I  do  not  iaiov  as  I  e:;actly  understand  it  yet  myself.      If 
it  means  v;]iat  it  says,  as  I  understand  it,   the  jury  '  ould  "be  simply  an 
ornament."     The  court   then  proceeding,    said: 

"In  tliis  case  Gie  4uty  devolves  upon  the  court  under  the  law  laid 
doi.m,   to  ta-ce  the  case  fro.n  the  jury  and  render  a  verdict  in  accordance 
with  .the  court's   opinion,   and  in  viev;  of   the  fact  that  the  court  in  Giis 
case  has  listened  to  the  testimony,   and  is   satisfied  that  a  verdict  in 
this  case  must  "iDe  in  favor  of  defendant,    that  fce  plaintiff  lias  failed 
entirely  to  nia"k:e  out   a  case,   and  t:^at  the  facts  in  this  case,   as  applied 
to  the  law,  would  corcpel  a  verdict  of   that  Irind,  and  in  viev.'  of  the  fact 
tii5.t  you,  gentleman,  not  iind^erstancang  the  law,  prol)a'bly  might  "bring  in 
a  vercfdct  some  other  way,  whicl:   I  woi'O.d  "be  compelled  to  set  aside,    I  think 
the  proper  th-ing  to  do  would  be  to  discliarge  tl^  jury  and  render  a  verd.ict 
myself.     L;o  you  are  o::cused  from  anj"  ftirther  duty  in  this  case,   and 
judgment  will  go  for   the  defend.ant  in  this  case." 

But  it  is  contentled  that  tliere  v;a5  not   sufficient  evidence  in  this 
case,     "ith  this  conclusion  of  learned  counsel  ^/e  cannot  agtee.     It  seemed 
to  "be   the  viev/  of  t'r.e  trial  court   that  the  conduct  of   the  defendant  and 
tlie  plaintiff's  v;ife,   at  cny  time  after  the  separation  of  plaintiff  and 
his   ,afe,   was  not  pertinent  nor  material,   on  the  tlieory,  as   indicated  "by 
the  court,    that   tiiero  could  "be  no  alienction  of  affection  v.here  none  ex- 
isted. But   it  does  not  necessariiy  follov.'  tlia  t  affection  does  not   sur-.'ive 
a  separation.     Eo  ar;bitrary  standejrd  of  action  can  be  erected  "by  which 
conjug-al   riTiectioi  caii  "be   tested  or  measured.     It  diffois   in  intensity 
and  coiistrncy  vith  the  different  temperaments  end  char:.cters  of  the  indi- 
viduals.    It  ma-r  he  so  sv.perficial  tlu-.t  sli^^it  provocation  would  be 


122. 

sufficient  to  destroy  it,    or   it  may  te  so  deeply  rooted  that  it  './ill  sur- 
vive oeslect,   disgrace,  brutal   treatment,   and  desertion.     It  Eomotimec 
even  outlives  lesaL   separation,   as  is  proven  "by  max^^  authenticated  in- 
stances of  men  and  women  remarrying  after  divorce  has  "been  obtained. 
Hue  "bands  ai3d  v/ives,   in  tlic  heat  of  passion  engendered  Vj  \vrongs,  real  or 
imaginary,  may,   and  frequently  do,   separate  from  each  other,   and  yet  -.Then 
time  gives  opportunity  for  reflection  and  self-examination,   it   is  fre- 
quently discovered  by  both  parties  that  the  actual  cause  of  dissension 
was  really  trifling,   that  affection  was  not  annihilated,  but  simply  for 
the  time  being  forced  into  the  bac:<grovmd,   and  reconciliation  is  devoutly 
desired  b^-  both.     And  it  is   this  ri^at   to  a  reconciliation  that  a  strang- 
er has  no  ri{Jit  to  interfere  v;ith,   or  deprive  a  husband  or  v/ife  of.     They 
are  legally  husband  and  v.lfc  until  they  are  divorced,   and  legal  respon- 
sibility still  attriches   to  the  husband  to  support  the  wife.     It  iF^v.-ell 
established  law  in  this  country  that  evidence  offered  by  the  defendant 
to  show  a  state  of  facts   indicating  tlmt  no  affection  e::isted  bet.veen 
the  plaintiff  and  his  vdfe  will  not  be  heard  as  a  bar  to  action  for 
alienation  of  affection,  but  \all  simply  be  heard  in  mitigation  of  dam- 
ages.   Some  of  the  authorities  go  so  far  as  to  hold  that,  \.here  it  was 
admitted  that  the  wife  had  no  affection  for  the  plaintiff,   a  third  party 
had  no  ri^t  to  interfere  or  cut  off  any  chance  of  an  affection  spring- 
ing up   in  the  futiire;   and  that  it   is  not  in  the  interest  of  good  order 
a;:id  public  morals  to  pennit   one  who  has  no  right   to  interfere  to  set  up 
a  disagreement,  or  even  separation,   as  a  complete  defense  to  an  action 
by  the  latter  for  the  wrong.     Elliott,  Evidence,  Sec.  1650;   15  Am.  &  Stig. 
Ency.  Law  (2d  ed.),  p.  862;  Sutherland,  Damages    (Sd  ed.),  p.  3771;   Cool- 
ey.   Torts   (2d  ed.),  p.   265;   ard  cases  cited  by  the  above  authorities, 
vhich  fully  sustain  the  text.     V/ithout  specifically  coaalyzing  the   tes- 
timony,  it  is  sufficient  to   say  that  there  is   arnpl^  evidence,    if  the 
jury  believed  it,   to  sustain  a  judgment  against  the  defendant. 


The  judgnsnt  of  the  court  will  theref csre  be  reversed,   and  a  new 
trial  had. 

llount,   t;.   J.,  Root,   Crow,  Pullerton,   and  Hadley,   JJ., "concur. 


---'--^^i^ri:^'^^ 


^^s-^^fec-*-*-^!^^ 


^ 


123. 


AHSE3A  NQRLl.TLE,  Appellant,   v.  IdTiim  DEITEOH, 
Jndividtially  and  as  Eicecutrix  of  the 
Estate  of  S     Normile,  Respondeat. 

(109  "Wash.   ?Xi5     86  P.   505). 

Appeal  frjjm  a  judsment   of  tl-e  superior  court  for  Ein^  county, 

Jtirey,   J.,   entered  April  10,   1919,  upon  sustaining  a  demurrer  to   the 

conspiaint,  dismissing  an  action  to  recover  a  community _interBst  in 
property .    Eevjarsed . 

Tolman ,  J » — -Eiis  action  v/as  brcught  by  appellant  against  respondent , 
individually  cad  as  exocutri::  of  the  estate  of  Sr   iTormile,   deceased,    to 
recover  one-half  of  certain  connunity  pix?pert-y  accumulated^  the  dece^ 
dent  and  appellant  during  the  time  they  were  husband  and  wife,   viiich,    it 
is  alleged,  was,   at  the  time  of  the  matcLng  of  a  property  settlement  bw^ 
tween  them,  fraudulently  concealed  by  the  husband. 

To  appellant's  supplemental  and  amended  complaint,   a  demurrer  was 
interposed  on  the  ground  that   the  complaint  doas  not  state  facts  suffi- 
cient  to  constitute  a  cause  of  action.     The  deiiiurrer  v/as  sustained  by 
tlie  court  below,   ard  the  appellant  declining  to  plead  further,   a  judg- 
ment of  dismissal  follo^.-sd,  from  vhich  this  appeal  is  prosecuted. 

In  substance  the  supplemental  and  amendad  complaint  alleges   that 
tlE  appellant   anri   S     normilfl  \,/ere  mnrried  t>n  June  i,  1892,   and  that  the 
community  thus   formed  continued  until  dissolved  by  a  decree  of  divorce 
gatered  Ilav  51.  T917.,    in  an  action  commenced  by  the  \7ife  on  I.Iarch  ZBT' 
1917;    that,   during  their  married  life,  considerable  property  was  accumu- 
lated,    of  A/hTCh  t-.liA  hnrVianrl    Tiarl    t-.>f^    Ant  it-p   pn<:!Rfi<?f-tO)T    and    COntrOJ^^^^the 

amount  ariL  value  of  which  vjere  at  all  timers  ^j^cealed  from  tlie  v/ife ; 
that,  on  Kay  16,  1916,  the  parties  entered  into  a  \iiritten  agreement, 
Vihich  recites;  "  ■ — 

"That,  vhereas,  the  above  parties  liave  been  married  nearly  trz-enty- 
four  (24)  years  and  are  nov;  husband  and  -vife,  and  have  since  their  mar- 
riage accumulated  considerable  proper tjr,  both  real  and  personal,   and 

"Yihereas,  some  differences  have  axisen  between  said  parties  hereto, 
and 

"V/hereac,  bo  Qi  of  said  parties  are  of  the  opinion  tliat  it   is  advis- 
able and  better  to  divide  all  tl-e  ir  property,  both  real  and  personal, 
separate  and  community, 

"How,   therefore,"  etc. 

Then  follow  provisions  by  which  the  wife  is  to  retain  her  jewelry, 
and  all  money  and  other  assets  previously  given  her  by  the  husband,  ag- 
gregating approximately  '!;4,000  in  value;  the  cash  on  hand  vhich  amounted 
to  vlO.OOO,  bonds  amounting  to  010,131.50,  mining  stock  of  the  par  value 
of  v500,  money  or  bonds  due  from  King  county  vmdor  a  contract  for  grading 


124. 

the  Duwamish-Renton  road-.vay,   and  $5,000  of  bonds  iu  occrov/  in  the  Seattle 
National  Bank  are  all  equally/  divided;   a  policy  of  insxrance  on  the  life 
of  the  husband  is  given  to  tlB  v/ifo;    tViS  real  et^tate,    it  ic  provided, 
shall  remain  undivided  ccimiunity  property  as  theretofore.     Then  follow 
provisions  to  the  effect  that,   so  long  as  they  sliall  occupy  the  same  home, 
the  husband  shall  pay  the  household  expenses,   the  personal  erpenses  of 
the  wife,    the  premiiiKS   on  the  life  insurance  policy,   and  ta::eE  on  real 
estate;   and  the  profits   of  his  business,   after  the  payment   of  such  ex- 
pense,   slaall  be  equally  divided;  and  that,   in  the   event    of  their  ceasing 
to  occupy  the  same  home,   the  vafe  shall  thereafter  paj^  for  her  ovm  main- 
tenance. Pay  the  premiums  on  the  life  insuran.ce  policy,    the  taxes  and 
cloarges  on  her  ov.ii  property'-,   and  the  husband  shall  be  entitled  to  retain 
the  profits  of  his  biisiness;    the  furniture  and  effects  in  the  home   to  be 
then  equally  divided,    except  certain  enumerated  articles  vAiich  shall  be- 
long to  the  wife,   and  the  qucstio-.:  of  blame  for  the  separation  shall  not 
affect  the  settlenxsnt.     !Ilae  complaint  alleges  that   the  husband  represeat- 
e_d  that  the  personal  property,'  referred  to   in  the  agreement  was  all  the 
per^tmal  propsyt;^/  belonginjC;  to   the  community,   and  that  the  v;ife  relied 
solely  upon  tlie  husbsiid's  representations   in  th-it  r'^spfip.t.      It  is  fu?T;iier 
^legcd  that  thereafter  and  on  the  28th  day  of  Uarch,   1917..   the  Parties 
entered  into  another  and  subsequent  vvTitten  property  agreement,   also  made 
a  part  of   tie  complaint,  which  recites: 

iiThat,   \^ercas,    the  above  named  parties  Mve  been  married  appro;:i- 
mately  twenty-five  years  arxl  are  ncv.*  husband  and  vafe,   and  have  since 
their  said  marriage  accumulated  considerable  property,  both  real  and  per- 
sonal,  and, 

■"Whereas,    Gis  parties  hereto  did  on  the  16th  day  of  IIaj,%   1916,   enter 
into  a  v^ritten  agreement  which  provided,   among  other  things,   for  a  par- 
tial division  of  the  pioperty  belonging  to  the  parties  hereto,   and, 

"Whereas,   since  said  agreement  the  parties  Imve  lived  together,   but 
have  again  separated,   and 

"Whereas,   the  agreement  of  Ilay  16th,   1916,   did  not  affect  a  division 
of  the  real  i^ropcrty  belonging  to  the  parties  hereto  nor  of  certain  'j^er- 
Eonal  property  belonging  to  said  parties,   and, 

•AVhereas,  both  of  said  parties  are  now  desirous  of  making  a  full 
and  comxjlote  settlement  and  division  of  the  property  interests  of  the 
said  parties, 

"Now,  therefore,"  etc. 

Chen  follov/s  an  aclmowledgraent  of  receipt  by  the  v.lfe  of  the  various 
items  of  property  given  to  her  by  the  prior  settlement;   a  division  of  tlie 
real  proper t-/,   not  here  attacked;   the  half  of   the  bonds   in  escrow  in  the 
Seattle  National  Bank  reserved  by  the  husband  by  the  first  agreement   is 
given  to   the  vafe,    as   is  also  all  of   the  furniture  and  effects   in  the 
home,  ard  it   is  provided: 

"(b)     All  remaining  property  heretofore  belonging  to  the  community, 
including  money,   bonds,   accounts  and  billc  receivable,   are   to  become   the 


125. 

separate  i^roperty  of  the  party  of  the  f  irct  part  herein,  free  aad  clear 
of  any  right j  title  cc  interest  therein  on  do  part  of  the  eecond  party 
hereto." 

Also: 

"Fifth;     SaiC.  ;jart!f  of  the  second  part  hereby  v/aives  any  rights  or 
claims  of  aav  Iciut?.  that  she  ma:.'-  or  mifdit  ]^r]■^r>  nrr^Tmr.t  tViR  pajty  of  the 
first  part  herein  by  reason  of  the  fact  that  she_  is  nov;  unav.-are  of  tha 
existence  of  au^  property,  money,   bonds^,  accoimts  or  Mils  roceiyable, 
choses  in  action  or  any  other  property  of  any  kind  or  description  what- 
soever of  which  the  coiiiraunity  may  nov/  be  possessed-   that  slue  hereby  fur- 
ther v;aiveE   aay  and  all  rights  oi'  claims  that  she  may  or  mi^ht  have 
a^sainst  the  first  party  herein  by  reason  of  any  false  representations  or 
concealments  of  any  Irind  made  by  the  party  of  the  first  part  to  her  re- 
garding any  of  tl^e  community  assets,   ard  said  party  of  the  seconc".  part 
furtlEr  waives  any  rights  or  claims  she  may  or  might  have  against  said 
party  of  the  first  part  by  reason  of  any  false  representations  or  con- 
oealtteatB  of  aoy  profits  that  said  party  of  the  first  part  might  have 
made  in  the  Duwamielx-Reiiiton  roadifray  contract  or  any  other  contract;  and 
said  second  party  hereby  acc^ts  the  property  herein  described  as  here- 
tofore given  her  or  given  her  by  the  terras  of  this  agreement  in  full 
settlement  of  her  share  of   Vib  entire  property  interests  of  the  commun- 
ity whether  the  same  has  been  disclosed  to  her  or  not." 

And  also: 

"Seventh:     The  party  of  the  first  part  agrees  on  his  part  to  pay  all 
bills,  claims  or  judgments  which  may  have  been  incurred  by  him  or  \-aiich 
may  in  the  future  be   incurred  by  him  in  the  conduct  of  his  btsiness,    in- 
cludiig  all  existing  or  future  obligations  of  the  marital  communitj^,  ex- 
cept the  taxes  and  assessments  referred  to  in  subdivision  (b )  of  the  sec- 
ond paragraph  of  this   agreement,    and  e::cepting  bills  perscnally  contract- 
ed by  second  party  after  October  18th,    1916,   and  to   indemnify  and  save 
the  party  of  the  second  part  harmless  on  account  of  the  same." 

The  complaint  then  alleges  that,  at  tlae  time  of  the  maJcing  of  tlae 
last  agreement,   the  husband,  v;ith  intent   to  deceive  tlie  wife,frBadulently 
and  falsely  represented  that  he  had  truthfully  disclosed  all  of   the  items 
composing  tte  community  estate  and  the  value  thereof,   aixL  that  the  prop- 
erty so  convej^ed  and  delivered  to  the  wife  constituted  one-half  of  all 
the  conmunity  personal  property.;    tliat  the  attorney  vho  represented  the 
husband  had  been  his  cotmsel  for  some  years  and  v/as  familiar  with  his  af- 
fairs,  and  that  he,   too,   assured  the  wife   tliat,   so  far  as  he  loiew  or  had. 
been  advised,    the   items  disclosed  constituted  all  of  the  community  per- 
sonal propertjr-   that  she  made  inquiry  at  the  bank  vhere  the  husband  did 
business,   aaid  of  thi  city  officers  having  chjarge  of  the  payment  of  the 
amounts  due  the  husband  under  his  various  contracts,   he  being  a  contract- 
or principally  engaged  in  doing  v/crk  for  the  city  of  Seattle,    and  made 
such  further  search  and  inquiry  as  v/as  practicable,   and  learned  nothing 
to  cast  doubt  upon  the  husband's  representations,   and  nothing  to  the  con- 
trary could  have  been  learaed  by  any  inquiry  she  might  have  tlien  made; 
that  the  husband  v.:as  not  called  upon  to  paj-  an^^  indebtedness  v^ich  exist- 
ed at  the  time   of  eater ii^  into   the  contract  of  llarch  28,   1917,   nor  wa£ 


126. 

any  such  indebtednocs   ttoreaftor  incurred  in  the  condr.ct   of  his  business, 
and  no  such  claircs   v.cre  evar  pi-essated  ^.r^z-inzt  his  estate,    aud   that   the 
time  far  presencation  of  ony  cunh  claims  has  ercpired.      It  is   tiien  al- 
leged that   tlie  iv.^sbaud  thereaftor  died  iutestate,  and  that  respondent, 
after  qualifying  as  e::ecaori::,    opened  certain  aafe-depocit  boxes  kept 
"by  the  ^lU'-. hand  iu  h:is  liiTetiine,  and   there  found  and  prodrced  cash,  local 
improveraeut  heads  aix\  o'her  securities   of  the  value  of  .^325,000,  vhich 
tlie  husband  had  ccn?Q3:ied  at  and  prior  to  the  malaus  of  the  property 
settle.aenfc.   and  -.hich  -m-ca  a  pa;:t  of  the  ca:ninunity   estate,   the  eiastence 
of  which  \;as  v.-holly  un:a).c\.'n  to  the  wife,  v;ho  thereafter  presented  a  duly 
verified  claim  to   the  oxecutri::  for  \diat  she  conceived  to  he  her  interest 
therein,   and  hor  claim  vns  disallo-wed.     Ehen   -then  brought   this  action, 
demanding  judgn^ent  for  ''.l^,ZoO,  riiich,  with  the  araoujats   she  has  already 
received,   vould,    as   she  claims  equ.-.l  /<ne -half  of  the  c  crcmunity  estate  as 
it  actvially  e::iEtcd  at  tts  time   of  the  settlement. 

Respondent  argues  that,   as  shown  by  the  complaint,    the  v/ife  did  not 
re3iy  upon  the  roprosontations  made  by  tlie  hUEbaD.d,   or,    if  she  did,   she 
^ould  not  have  done  so  undor  tha  circumstaiiCGS  pleaded.     It  is  true,   at 
the  timc!  of  the  making  of  the   last  agracmont,   tlie  partios  had  been  sep- 
arated for  some  months;    that  she  \.'as  rcprosuntod  by  counsel,  and  had  do- 
terminod  to  bring  an  action  for  divorce.     She  might,  and   if   she  had  reas- 
on to  Euspoct  the  husband's  good  faith,   no  doubt  would,    instead  of  con- 
tractirg  vath  him  -i.lth  roferenco  thereto,  have   talcn  the  \;holG  subject 
of  the  property  division  into  court.      Ihat  cho  did  not  do  s  o  is  consist- 
ent with  her  allegations   of  reliance  upon  the  husband's  represontatioa^. 
Taldng,    a£  we  must,   the  allegations   of  the  complaint  as   true,   there  can 
be  no  doubt  that  the  vri.fG  was  actually  defrauded  to  the  extent  of  her 
ono-half  interest   in  property  -.vorth  §29,000,    the  oxistonce  of  which  was 
tmlaiov;n  to  her.     There  is   notliiiJg   in  the  complaint  to  indicate  axrj  fact 
cr  facts  Vihich  v;ould  put  her  on  notice  as  to  her  husband's   intent  to  de- 
ceive.    The  second  agreement  refers   to   identically  the  same  property  in 
every  instance  as  the  first,  and  having  no  iDotice  that  anything  ;':a.s  omit- 
ted from  the  first,   the  natural  presumption  wxis  that  the  property  de- 
scribed in   the  first  agreement,  made  at  a  time  vAion  the  parties  were,   aud 
apparently  hoped  to  continue,    living  tcg-ethcr,  was  all  the  property  there 
was  to  be  divided  by  the   secoixl  agreement,  made  viicn  they  v;ere  no  longer 
liviag  together.      Qui-  statute,  Ron.   Code,  Sec.   5292,   as   to  the  burden  of 
proof  in  transactions  botv/een  husband  and  \,lfe,  v.-ould  seem  clearly  to 
apply  to  the  first  agreement,  and  if  so,   lacking  any  shov.li^  as  to  any- 
thing to  put  tlXi  -jife  on  notice,   occurriiig  after  the  execution  of  tho 
first  agreement  and  before  the  execution  of  tic  second,    the  same  burden 
would  continue.     But  even  though  tho  relation  of  husband  and  v.lfc  did  not 
exist,    or  if,  by  reason  of  the  estrangement,    it  should  not  have  been  re- 
lied upon  here,    the  facts  \;orc  peculiarly  v.lthin  the  "aaov.iedgo   of  the 
husband,  and,  according   to  tli2  allegations   of  tho  complaint,    tic  \;ife 
could  not  liave  discovered  the  concealed  securities  no  matter  how  diligent 
Elie  miglit  iTave  been.     \/c  tlxink  the  pleaded  facts  brir^  the  case  v.ltliin 
the  rule' laid  dov.n  in  Mulholland  v.  Washington  Hatch   Co.    55  'Vash.   C15, 
77  Pac.  497,   aixL  Laniol  v.   Giiddon,   Z6  V/ash.    556,   80  Pac.    811. 

TlQ  cannot  hold  that  one  may  deliberately  concoivo  a  plan  to  defraud 
and  then;  in  carrying  it  into  execution,  by  the  use  of  %-?ords  such  as  arc 
contained  in  the  fifth  paragraph  of  the    second  agreement  as  above  quoted. 


^^t^'-^C:^^l^ 


,.j*-^?^;<«'«-^^>■i^ 


127. 

aTasolvc  hirnsclf  from  the  coiicequcncoc.     It   is  conceiva'ble  -that  tho  mfe 
migiit  have  believed  tliat  tie  lar-suage  referred  to  v/ac  inserted  to  cover 
any  possible  items  vAiich  n-ay  Imve  been  fOr;:^ottcn  cr   ovcrloolced  in  good 
faith,   or  even  the   implements  and  appliances  used  by  the  husband  in  car- 
rying on  his  business,   viiich  were  novhere  mentioned  in  either  contract, 
but  it  v«-ould   choclc  the  conscience  to  hold  tliat  the  husband  may,  by   the 
use  of  such  language,   talE   away  all  remedy  for  his  deliberate,  fraudulent 
sequestration  or  a  substsntial  portion  of  tte  c  ccTOimity  estate,  i-Siich  the 
law  entrusts   to  his    sole  control  and  management  and  of  v;hich  it  requires 
a  true,   open  and   fair  accounting  vhen  the  community  is  to  be  dissolved. 
Ho  e::actly  parallel  case   is  called  to  our  attention    but   it   is  generally 
held  that  a  stipulation  in  a  contract  tiiat  false  or  fraudulent  representa- 
tions by  \.hich  one  pai-ty  has  induced  the  other   to  enter  into   it  shall  not 
affect  its  validit;^-  is   itself   invalid  and  cannot  operate  by  estoppel  or 
otherv/ise.     Berrendo   Irrigated  Farms  Co.   v.   Jacobs,    25  H,  II.  290,   166  Pac . 
485;  Hofflin  v.  Moss,   67  Fed.  440=     Even  though   tMs   language  should  be 
held  sufficient    to  put   the  wife   on  inquiry,  we  have  already  seen  that  the 
complaint  alleges  that  discovery  could  not  have  been  made  by  any  inquir-y 
within  the  v/ife's  po\/er  to  malce,   and  the  nattfe  of  the  concealment  alleged 
Warrants  smch  a  conclusion. 

Ilor  can  -ve  follov/  counsel  for  respondent  in  his  argument   tliat   it  ap- 
pears on  the  f  acQ  of   th,^  c  cmplaint  that  appellant  know  she  had  bocsn  do- 
fi-auded  by  the.  first  agreement  and    tiiat  by  the  socorcL  she   settled  her 
claim  for  damages  and",  released  the.  fraud.     Of  course,    one  v/ho  has  boon 
defrauded  and  kno\7S  it,  may  con^promise  and  settle  his  right  of  action  far 
the  fraud,  but    if  any  such  condition  obtains  Ixre   it  must  bo  raised  by 
ansvjor,   as  v.c  can  find  nothing   in  the  complaint  vhich  vail  justify  us  in 
assuming  such  to  bo  the  fact. 

It  is  further  contended  that  a  party  cnmot  rescind  a  contract  vath- 
out  offering  to  put   the  other  Party  in  statu  cjuo.     Haat  is  undoubtedly 
the  law,  but,   as  wc  viev/  it,  this    is  rather  an  action  to  recover  damages 
suffered  by  reason  of  the  fraud   than  one  for  rescission.     In  any  event, 
appellant  in  her  complaint  offers   to  account  for  all  of  the  conmunity 
personal  property  received  by  hor,  and  should  she  finally  prevail  the 
court  can,   by  its  judgment,   do  equity  between  the  parties.     Iloor  v.  Lloor, 
24  Tex.  Civ.  App.  150,   57  S.  Y/.   992.     Seing  satisfied  that  tlie  supple- 
mental aM  amended  complaint  states  a  cause   of  action,   the  judgment  ap- 
pealed from  will  be  reversed,  vriLth  directions  to  overrule  tha  demurrer. 

Judgment  reversed.  . — ■  __,  , 

x-     o>  v~  V      \  - 

Holcomb,   C.   J.,   Bridges,  Mount,   and  Fullerfon,   JJ.,   concur. 


128. 


BATLA  et  al.  v.   BATIA  et  al. 

(Court  of  Civil  Appeals  of   Texas.  Hay  17, 
1899). 

(31  S.   7.    6&A) 

Appeal  from  dis  trie t  court,   ColoracLo  cotmt:>';  H.    Teiclimuoller, 
Judge. 

Action  "by  John.  Batla  3nC>.  others   against  Hiomas  Batla  and  others. 
Judgment  f©r  defendants,    and  plaintiffs  appeal.     Reversed. 


James,   0-   J.      Ihis  is  a  suit  for  partition  "by  plaintiffs  against 
the ir  father,    Thonas  Batla,  Si-.T'ciaiminf  thsTt^tlio   irjnd  i:\  ruestttin  was 
oommuarty  property  of  their  "father  andtieir "  dec  eased  mo  Qier .  Rosina    ' 
gatlaT     BeforB^trial ,   the  f atiier  diedT^and  his  eecoixL  wife,   as  his  exe- 
cutrix and  soiliffl  devlseo,   thon 'bGcaiciG  thctl^f  eMant .     Jiidament   ..'.-s  f^ 
dgf  eaidant .     'i<«.v~^v~%-e_c\     o-^     ^«..'^  ^^ci^^'-^^.^^- 
The  conclusions  of  the  judge  constitute  the  statement  of  facts,   and 
are  here  given:      "(1)  Pacts.      Eiomas  Batla  and  Rosina  Batla  were  husliaad. 
and  v/ifG,  liaving  interraariieci.  in  Europe  hoforo  emigrating  to  TG::as,   1852. 
They  were  hushand  aad  \;ife  on  the  28th  day  of  June,  1896,    tiie   date  of 
the  death  of  Rosina  Batla.      (2)  Plaintiffs  are  the  children  and  heirs, 
as  alleged  in  the  ir  petition.      (5)  Subsecoiently,    either  the  latter  part 
of  1885  or  early  in  the  year  1887,    Eiomas  axi.  Rosina  Batla  agrrced  to 
separate,  and,   as   incident  to  and  in  contemplation  of    tliis   agreement  to 
separate,   they    jointly  conveyed  on  the  22d  day  of  Fehrnar:,-,    1887,    to  one 
Mary  Satyzok  three  several  tracts   of  land  situated  partly  in  Austin  anc". 
partly  in  Colorado  countj'  for  the  aggregate  sum  of  seven  thousand  dol- 
lars.     Ihese  several  tracts  of  land  constituted  the  camniunity  estate  of 
Bioiiias  and  Rosina  Batla.     Mary  Saliyzek,   the  purchaser,  made  and  deliver- 
ed her  several   fourteen  promissory  notes,  each  for   Cie  sun  of  five  hund- 
red dollars,  fa-  tl::e  purchase  money   {seven  thousand  dollars),   and  one- 
half  of  said  notes  \;ere  made  payable  to  and  delivered  to  2horaas  Batla^ 
axiA  one-half  oi  tl'-ea  v.ere  made  payable  to  and  delivered  to  Rosina  Batla. 
(4)  Simultaneously  \/ith  the  aforesaid  sale  and  division  of  the  proceeds, 
the  parties  separated,   and  remained  actually  separated  until  some  time 
in  December,  1895.     But  tLe^r  v/ere  never  divorced.      (5)   Eiomas  Batla   in- 
vested the  proceeds  or  notes  he   received  in  the  afbresaid  partition,    or 
a  part  thereof,    in  the  purchase   of  the  landc  described  in  tlie  petition 
of  plaintiffs,   an!?w  claimed  by  tliem  as  coramunitir  property-  of  Thomas  and 
Rosina  Batla.      (6)    2h2   evidence  fails   to    sliov;  \hat  use  or  c-isposition 
Rosina  Batla  made  of  the  notes  delivered  to  and  controlled  by  her.      (7) 
Rosina  Batla  returned  to  her  husband  at  his  request  about  a  year  before 
she  died,  and  remained  at  her  husband's  homo  until   she  died,    the  2Sd  day 
of  June,   1896.      (8)  Sons  of  Rosina  Batla,    introduced  as  v.ltnesses,    inti- 
mate  that   the  father  '.Tas  embarrassed  and  had  pajoneats  to  maKe,  and  -.vas 
actuated  to  indice  their  mother  torettirn  to  him  by  the  desire  of  having 
her  assistance   to  pay  his  debts;  but  it  does  not  appear  vhethor  she  still 
had  mcfjjis,  -wiietlier  sh-c  rendered  him  any  assistance,   or  to  -if^at  extent. 


122, 

but  it  \/as  clio\,aa  tliat  siie  gave  one  of  tl:c  five  liuadroc.  dollar  notes   to 
one  of  her  cons.     ISitnozsot.  'tmo\:  of  no  puvchasos  (xr  invcctracutc  die  iaade; 
but  tiE  fact  \;as  £ho\.ii  tliat  Rosina  Batla  had  no  property  at  the  tim&  of 
her  death.      (9)    On  Febiuary  lb,    1888,    the  said   Biomas  Batla  bou^t  the 
laud  in  controversy  fron  one  B     F     Stafford;    tlic  deed  reciting  that  he 
paid   Gie  said  Stafford  the  sum  of   tv.'o   thousand  dollajrs   in  cash,   and  e::e- 
cuted   to  Mm  his  four  notes,   each  far  five  hundred  dollars,  due.   resi'cot-fe- 
ivoly,  DccyEber  of  1888,   1889,   1890,    and  1891,    secured  by  vendor's  lien, 
which  v/as  released  Deo eiab or  bl,   1894.      (10)    Ghere  vas  no  \a*itten  agree- 
ment, but   only  a  verbal  agreement,   bet\;een   Uicmas  and  Rosina  Batla  in 
regard   to  their  separation.      (11)  Defendant    E-^oraas  Batla  died  soon  after 
the   institution  of  this  suit,    aiid,  having  maxried  a  second   time,  his 
surviving  widow,   e::ecutri:c  of  the  will  of  the  deceased,  became  party  de- 
fendant •  •' 

It  appeai-E  from  thic  statement    Giat  tl:ie  sepc.ration  of  Thomas  and 
Rosina  Batla  v,'as  actual,  and»  intended  as  permanent  -.viien  made.     In  such 
situation  c  division  of  t-iieir  conmunity,   made  for  tlie  purpose  of  separct- 
ing  their  interests,   a.-^.  giving  to  each  one  half   o£   the  property,    if 
fairly  consumniated   (as  appears  here),   is  effectual,    aid  the  property 
thus  obtained  by  each  becomes  his"  cr  her  separate  property.     Rains  v. 
Mieeler,    76   le::.   £90,    IC  S,  W.   524,      TIu©  notes  \.hich  composed  the  ctBn- 
munity  estate  were  personal  pi-operty,   and  the  division  bet\-een  the  par- 
ties v/as  consumiTiated  viien  their  land  was  sold  and  one-half  of  the  notes 
talcen  to  the  husband  and  one-half  to  the   \.'ife.     The  fact  that  years 
later  and   about  a  year  before  tlie  \/ife  died  thay   crjne  together  again  did 
not  change  into  coranunit^,^  property   that  \/hich  liad  become   the    separate 
property?   of  each.      Kiey  did  nothing  to   indicate  their   intention,   or  tliat 
had  the  effect,   of  nullifying  the  division  of  property.      Bie   land  in 
Question  •v/as  bought  h-j  the  husband  \<lth  the  notes  or  the  proceeds  of  the 
notes   that  had  been  set  apart  to  him.     V/e  conclude   tliat   Hio.  judgment 
should  be  affirmed.     Affi.-med. 

On  notion  for  Reheca- ing. 

(June  14,   1899.) 

Appellsmts,   in  this  motion,   call  our  attention  to  an  inconsistency 
in  the.   judge's  findings   of  fact.     One  finding  is    that   rnotias  anc.  Rosina 
Batla  remained  actually  separated  until  some  time  in  December,    189L;;   an- 
other is   that  Rosina  Batla  returned  to  her  husband  ajt  his  request  about 
a  year  before  she   lied,   and  remained  at  her  husband's  home  until  she 
died,   the  2Zu  day  of  June^   1895;   aiiotliar  finding  './as  tliat  the  vendor's 
lien  upon  the  laiid  -.iiich   Kiomas  iiad  bouglit  -Tas  released  December  31, 
1894.     In  our  viev;  of  the  case,    tie  discrepancy  in  tliese  finding's   is  not 
material.      B-s   prities  did  not  cease   to  be  i^an  cnc".  •-•ife,    tlie  property 
was  acquiredrdurTng  tlei.'  covermre,  and  -..as  prima  facie  community  prop- 
ei"ty\     Ifli:   unl"  to  the   e:;tght  t!ir-tTt"was  purchased  by  giomas  B^Tla 
~wIth~hiE    sei?  ai-ate  funds   tliat  tlie  presui".ption  of  communit;.'  property  is 
removed  or  rebuttec". .      2iis  case  is  not  to  be  7ie\;ed  as  one   in  \;hich  the 
husband,  before  marriage,  pui-chases  propert-y,    and  completes  pa'Tnent  there- 
for after  man"i?.ge,    in  \hich  case   it  has  been  held  that  tlie  property  re- 
mains separate,    vith  a  charge   tl^reon  in  favor   of  the  community-  against 
him.     La^.■30n  V.  Ripley,    17  La.   251.     A  close  e::xjiiination  of  tie  findings 


NTX 


^^f<'^^<<t^ 


-zy^ 


A 


/"^ 


>r*  *^  Pk- 


-j  - 


r 


130, 


of  tie  jiifi-ge  dicclocGc  that  r£  d  oec  not   find  uuequivocaXly  that   Cie  en- 
tire iJXii'Chano  monoy  for  the  laud  was  paid  by  the   notes  allotted  to  hira, 
or  thG  prooeedc  t.::iereof .     It  Gils  had  "been  found,   '..-e  ■..•ould  adhere  to 
the  dicposition  of  the  case  already  made.     E'^e  finding*  is:     "Ziomas  Sat- 
la  invocted  tlis  proceeds   or  notes  he  received  in  the  aforesaid  partition, 
or  a  part  thei-eof,    iu  the  purchase  of  the  lan(?.s.  '     Tlie  purchase  price  of 
the  land  \/as  §4,000,    and  the  notes  ho  had  ./ere  for  $5,500,   and  one  year's 
interest,  not  sufficient  of   itself  to  pay  the  v^iole  price.     Iliere  beins 
no  state.n2sn.t    of  facts,    and.  haviUtS  oaly  the  finc'-in^s   of  tls  jud^je,    .;c 
are  forced  to   say  that   the  facts,   as  found,    do  not  remove  entirel;^  the 
presumption  of  coLiaunity  property-,   so    tliat  r,B  can  affiim  the  judgment. 
TLiQ  findings  sho'/  a  doubt  in  th3  raiix'.   of  the  judge  as    to  the   e::teat   tMe 
separate  notes   or  proceeds   Ciereof  \,'ent  to  pay  for  the  propert-y  -     At 
the  same  time  I:e  malsc   it  appear  tiiat,   to  some  e::tent,   -  protably  to  a 
large  extent,   -  pa3niient  ^.as  so  made.     Upon  tliis  coix.ition  of  evidence, 
v;-e  can  neither  affirm  the  judginent  nor  i-ender  one.     Claiborne  v.    Taiiner, 
18   Tex.    79.      Tlie  motion  is  granted,    and  the  judginent  reversed;    ajcg.  cause 
remanded . 


^. 


^^. 


^^^^C^^ 


O' 


I      •  ""  I- 


131. 


CHARLES  L-   V.'IHaiffiD.,   Api-ellant,   v,  LUELIA 
V/IIIGAED),  Respondeat. 

(56  XraEh.    c89,    105  P  854  ) . 
1G09. 

Appeal  fron  a  orxlgncnt    of  the   superia-  court  for  l.'alla  v.'alla 
county.   Brents,   J.,  entored  July  15,    1909,   upon  findings   in  favor  of 


tlie  defendant.,  after  a   trial   on  the  merits  tefore  the  court  v/ithoiTt 
a-  5'^K't    i^  a^  action  to  quiet   title.     Reversed. 

ChadwiclC;    J.  —  Tte  parties  to  this  action  v.-ere  married  in  the  year 
1892,    aid   c-uch  relation  continued  until  Ilarch  21,    1906.      Hiis  suit  is 
"brous:ht  to   recover  a  half    interest   in  a  certain  tract   of   land,    alleged 
to  be  the  propert'"  of    the  Parties  and  acti'uired  diBring  coverture.     Tlie 
evidence  shows  that,  prior  to  1898,    tne  motiier  ctt'  retipouduiiL   was   in 
the  occupation  of  a  certain  five-acre  trggt_of_J.aad  near   thg^clty   of 
^lla  T7alla,  belonging  to  the  T/oodsvillo   Guaranty  &  Savings  BanS:,"a 
Hew  Hampshire  corporation,   and  Giat  she  load  had  cone   corresponderce 
v.lCa  the  ban Ic   ..ith  reference  to  the  purchase  of  the  property.      In  that 
ye ar  sha  .^l7irrln-nPir!   pn?^r.r^nf^im-i  of  ti;g    land  and  such  rights  as  she  may 
have  had  therein,  and  -DOT-iTiitted  the  V/ing,irds   to-rnnvp  mi-tD_tiie  property/ . 

In_J.901  negotiations  -.-ere  opened  bj'  appe llant ,  tlirough  an  attorney, 
for  the  purchase~of  th9~rand;  a  price  \7as  agreed  upon,   and  c.  deed  exe-_ 
cuted~^d:  sent  fo'the  i3aKer^Eoger_jrational_  BntiV  fnr  dplivp.ry.      The  deed 
v^s  in  fom  a  quitclaim,   and  for  that.rLe-a.aon,vas  raj-^acied  by  the   a^^^pal:^ 
T^nt..     UcLJ-'nTXi^  further  v-'as'ci.one  toward  consuignating__tlae   transaction  by  \\:bT~< 
either  party,   alliiou^i.  the  Wingards  continued  to  occupy;  the  land  and         ""^    ^^ 
"Had  purt~s  OKC^'considsrabl  s  improvGEcents  thereon.      la^  1905  respondent  left 
appellant  and^ after  a  due  season,  began  an  action  for   divarc^ in  Pierce 
cotmt^-,  Washington.      In  her  complaint  cho   cTcscribed  certain  property^ 
vaaich  gie  asserted  to  be  cprnmunity  propert;; .     She  inclxxl cd  ths  property 
nov;  in  controversy.      The   suit  for  divorce  vas  transferred,  upon  motion 
of  tiae  uefeudant,   appellant  here,   to  T7alla  ¥alla  county,    vhere  it  went 
to  trial  upon  appellant's  auswer  and  cross-coia&laint.   respondent   there- 
after defaulting.      In  tlia  t  case  tlie  court  uz£.e  a  decree  awarding  the 
coomunit^-  property,   but  no  mention  is  made  of  the  tract  now  sought  to 
be  charged.      11:6  decree  of  divorce  \,fc.s  entered  March  21,   1906.,   and  on 
June  15,   1906,    the  V/oodsville  bank  began  suit   in  ejectment  against  ap- 
pellant vho  had.  remained,  in  possession  of  the  property       Pending-  this 
suit,   negotiations  were  resumed  bet-.Bon  appellant  and  tie  attorneys  for 
the  bank,   v/hich  resulted  in  tlie  payment   of  the  sum  then  agreed  upon  as 
the  purchase  price,   and  a  dismissal  of  the  suit  under  a  stipulation 
that  the  "."oodsville  ban:-:  had  no  interest  and  was  not  then  the    O'-rner  of 
the  land.      iSia  trial  coui~t  fourd   tliat  the  property  \;as  coimuni ty  prop- 
erty,  and  decreed  a  partition. 

Appellant  contends  that  "Qie  first  negotiations   for  the   a>and  having 

'eg~v^:Th;3ajggnmunity  cliaracter;    that    tho  decree  in  the  divorce  suit  was 
res  judicata,   and  that  his  purchase  was  an  independent   transaction,  made 
in  his   o\m.  behalf  end  mth  his  o\7n  funds  vliich  he  had  borro\/ed  for  tloat 


132. 

purpoce.     On  the  other  liand,  re£r^3oucieiit  contends,  and  the  court  so  held, 
that  'becciuce  the.  property-  v/as  more  valuable  than  tlie  price  paid,   ecaC. 
tecause   the  purchase  price  as  finally  agreed  upon  titis  tliG  rcmc  as   that 
first  agreed  upon,  with   interest,  and  considering  the   residence  and  izn- 
provements  mode  by  tlie  part  is  c  vjhen  liviiag  there  as  husband  and  wife, 
tlie  laid   was   in  equity  subject   to  partition  as  connunitjr  property.     Re- 
liance is  also  put  upon  allogatious    in   Gie  answer  subscribed  by  appel- 
lant in  the  ejectment  suit,    in  vliich  appellaxit  sets  up  his   interest  as 
accruing  at  the  time    of  his   first  negotiations,   and  also  upon  the   stipu- 
lation in  '.(-hich  the  banic  agreed  tliat  at  the    time    it  liad  no  interest. 

'2he  case  is  cuTjinitted  on  the  facts  v/ithout  ceference  to  any  author- 
ities  to  aid  us    in  oui    solution  of   tie  i^iroblem,  aril   in  the  time  \-g  have 
had  to  devote   to    tliis  case  our   own  research  lias  been  equally  unavailing. 
However,   considering  the  equities  of  the  case,  v/e  are  forced  to  disagi-ee 
with  the   learned  trial    judge.     Hespoudent  cannot  recover,   for,  under  the 
admitted  facts  in  the  case,    tlaere  \/as  no  time  from  the  date   of  the  orig- 
inal  occupancy  until  thS   divorce  v;as  granted,    or  until   tlie  ejectment 
suit  was  settled,   that  appellant  or  respondent,  either  as  a  comn^mity   or 
acting  as   individuals,   could  have  maintained  an  action  to  compel  a  con- 
vesjance.     Tlieir  ri^ts  rested  upon  no  ec^uities  vhatever.      2hey  v.-ere  tres- 
passers -..hile  there  as  husb^vnd  and  .afe,  and  thereafter  c:ppellant  con- 
tinued in  simple   trespass   of  t>i>  rights  of  the  banlc.      Bieiir   occupancy 
\.a,s  never  hostile.     "Eie  banlc  \^as  at  no  time  bound  in  equity  to  convey'  to 
them;   cr   either  of  them,    thjo   land,   en.    any  part  thereof  -     V./hen  the  decree 
of  divorce  vra,E  signed,    it  could  not  operate  upon  this  land,   for  the 
reason  that  neither  the  husband  nor  the  v;ife  had  any  interest  in  it 
either  in  law  or  equity ^   nor  did  the  court  attempt  to  award  it,   although 
its  attention  was  called  thereto  by  the   original  complaint  in  the  action, 

VJhile   there   is  a  dearth  of  autlioritj,-  to  cover  this  case,    it  seems 
to  be  Eoucvhat  analogous   to  the  case  of  Kail  v.  Hall,   41  Wash.  186,    65 
Pac.   1C8,    111  Am.  St,    1016.      In  that  case  a  husband  and  v/ife  had  settled 
upon  vacant  government  land.     Ths  land  had  not  been  surveyed  and  ^.'as  not 
open  for  filing.      Zhey  load  lived  on  the   land  for  several  years  viien  th3 
v/ifo  brought    an  action  f  cr  divorce,  Tiliich  was  gr-antGd.     About  a  year 
thereafter  tiie  husband  filed  upon  the  land  anc"-,  vn.thin  anotiier  year,  he 
proved  up  and  obtained  a  patent,    taking  his  residence  upon  the  land 
prior   to  tlie  tinie    it  was   thro^rn  open,    so   tliat  his    title  depeuc-ed  upon 
sons  of  the  time  tliat  his  divorced  -wife  resided   .dth  him.     Upon  the  death 
of   the  husband,   the  first  wife  brouglat  an  action  asserting  a  communit-- 
intorest  in  the  land.      It  -./as  held  that   the  only  interest    tliat  the  dece- 
dent   (tic  husband)  had  in  the  property,    at  the  time  cf   the  divorce,  vas 
a  rigiit   of   occupancy  coupled  \.itli  a  preference  vjght   to  enter  the  laud 
anfw  acquire  title  thereto  after   the  same  vas   thro\Tn  open  far    settlement; 
tliat  his  ricJit  to   the  land  depenled  upon  continued  residence  and  future 
compliance    ..Ith  the  requirements   of  the  homestead  la^7S,    and  tliat,    there- 
fore, the  v.-ife  had  no  equity  in  the  laud  -..hatever. 

So  in  this  case,   the  parties  had  a  mere  occupancy  without   the  right 
of  occupancy.      Title  to  the  land   depended  upon  a  contract  and  pa^Tnent, 
vhich  v.as  not  made  or  consurnraatod  until  after  the  divorce  proceeding, 
and  then  only  as  a  result   of  the  ejectraent   suit.      If  the  divorced  wife 
\;ould  not  recover  in  that  case,   assiu-edly  there  can  be  no  recovery  in 


I 


155. 

this.      Zici-o  being  no  cgait--  in  favor    of  lecpondout,    clx  cannot  avail 
liGrcolf  of  any  ar'j-.iisLionr-   in  the  sms-./Gi-  in  tlx;  ejectment   cuit.     ITor  is 
she  "benGfited  "by  tha  terms  of  the  Btii:^lation.      Ilao  one  \^aE  an  alle-s-tioa 
vrttE    no  foundation  in  fr.ct;    tCio   other  v;as  made  aftor  settlement  and  in 
aid  of  the  deed. 

For  these  reasons  tliorefore    Cie  judgtent  of  the  lo'/er  court  is  re- 
versed,   ..ith  ins  tiuc  ti  ons   to  dismiss    this  case  for   tiie  -.-.■ant   of  oqiiity. 


Rudlcin,   G.   J.,    C-ose,   Pullerton,   and  Ilorris,    JJ.,   conctir. 

V'o  -v^       V= 


IIA. 


(2  TJash.   417,   1691.) 
Appeal  fi'OTi  SUx^erior  Gourt,   King  County. 

Luit  for  £avorcG /ov  Davie.  K.     ahstffy  r.>v-.-  v.i;;t  Sarjl'.  A.  V/ebcter. 
Defendaat  sn.s"v "erecTaiad  also  filec.  a  cross-com^;laiat  \:ii)on  wliich  a  iecrefi 
of  divorce  ./as  rendered.     2he  court  made,   a^Tioas  otl.ei's,  the  follo'./im,^ 
fiaif-in;^-  of  facts: 

"4.     Chat  tlie  folio- /iu^  property,    to  r/it:      All  of  lot  tv/o  aiid  a  strip 
tlu'oe  feet  ^/ide  off  of  the  north  sic.o  of  lot   thrae  iu  blocl-:  sevea,    in 
Boren  and  I>eiiny'E  addition  to  Seattle,   is  pert  sad  parcel  of   t 'o  lotc 
originally  purchased  on  or  about  the  24:th  day  of  July,   1669,   at  a  tirae 
when  tlie  plaintiff  and  defendant  were  living  together  endeavoring  to  mate 
a  hone,  aad  providing  for  the  ftiture;   that  neither,   at   Ciat   tine,  had  any 
money  e::copting   Goat  -vhioh  v/as  earned  by  the  plaintiff  in  his  daily 
vocation,   excepting'  a  small  amount   that   the  defcndrnt,   Sarah  A.  V.'ebstar, 
received  froii  her  half-brother;    that  -/hatever  sums  said  defcncJ-^nt  re- 
ceived from  her  brotI:3r,   or   otisi.ase  .j&ruired,  were  used  and  e::pendad 
for  tha  benefit  of  "both  in  tJis  household  affairs.;    th-at   ;;he  purchase  inonej' 
for  said   t-..'o  lots  v;as  aade  by  the  plaintiff,   aiid  ^.loney  of  his  o-.-n  ecjrn- 
ing;    that  •  hatever  improvements  Ir-ve  been  ereci-ed  upon  said  lots,  with 
the  exception  of  Vre.  buildintj  laio".Jn  as  the  V/ebstor  building,  v;ere  ercctad 
from  mo)i3j  oarnad  by  plaintiff;    that  tl-js  r.'obster  bloch  has  been  erected 
froi^  moneys   received  fro;a  a  ./mortgage  upon  said  realty;    that  at   the  time 
of  maling  the  final  payment  on  said  lots    the  deed  \;as   taken  in  the  n:j;ve 
of  tl"j3  defendant,  Larah  A.  V/ebster,  but  tliat   fiic  property  -.ras  not  deeded 
to  her  nor  intended,   nor  v;a:    it  understood  at   fho   ti.ne  nor  since,   as  a 
gift;    that  tlie  property  just  referred  to  is   of  tlic  value  of  §25,000, 
which  enhanced  value  is  by  roasai   of  tr.e  incroaco  in  value  of  real  estate, 
and  not  from  an-;  pj.rticular  act  of  cither  one  of  those  parties,    excepting 
as  fai'  rs  tiie  building  ci-ected  therco:-'.  adds   to    that  value,    the  money  for 
tlio  erection  of  ••lu.ch  v/as  received  from  a  mortgage  thereon;    that  since 
their  raarriago   they  laave  also  acquired  snd   are  no  ;  the   O'.raers   of  lots 
five  and  six  iu  block  four,    in  Robinson's  addition  to    tiie  city  of  Seattle.'' 

Upon  whdch  finding  of  fact   Gio  court  made  the   follov.lng  conclusion 
of  law,   to  "wit: 

"xhat  said  real  property  should  be  divided  equally,   share  and  share 
alil^c,    subject  to   the  debts,  vSiich   should  be  paid  in  the  same     v/ay.-' 

IJha  defendant  and  crOEs-coiuplainant,  Sarrh  A.  'Vcbst;.r,   excepted  to 
tlio  findings   of  fact,   and  conclusions   of  lav;,   and  frora  the  judgment  there- 
on appeals  to    this  coui't. 

'2x10  opinion  of   the  court  vra,E  delivered  by 

Dxinbar,   J. — !Ihe  main  question  to  be  decided  in   t'~is  casor  i.;rclves 


1Z5. 

tht)  conctructiou  of  Loc  2007  of  taie  Cede  of  'TashinstOii,  vhich  is  as 
follo-.;s: 

•■'Sgc.   2007.      In  c.'raiitiiig  a  divorce,   tl^Ji  court   sliall  also  mako   such 
disposition  of    tiie  property  of    tho  parties  as  shall  appear  just  auc). 
ecuitahle,  liaving  icgard   to  the  respective  merits  of  Gia  parties,  and  to 
tho  condition  in  \/hicii  thoy  -./ill  Tdc  left  "by  such  civorco,  end  to   tiie 
party  tlii^ou^li  "./hon  the  pro^jerty  -./as  aaquired,   and  to  tho  "burdens  im- 
^ot,cd  u_.on  it  for  tho  iDouefit  of   the  children,  and  diall  make  provision 
for  the  guardianship,  custody  and  supjjort  and  education  of  tlx  minor 
childicn  of  such  iBa.rriage." 

2hi£  statute   Ja.s  passed  in  1663,  prior  to  the  p'ssege  of   the 
conrounity  property  la..',  and  has  ever  since  "boon  the  la./  of    the  territory, 
anci.  of  the  state.      It   is  contended  Vj  appellant   that   tiiis  must  be  con- 
strued to  moan  that   tlie  court  shall  r.ialrc  such  divicion  of   the  joint 
property  of   tlie  parties  3,s  shall  a^ppoar   just  :  nd  ecuitalile,  and.  tte  t  the 
separate  property  of  either  spouse  is  not   to.  "bo  considered  in  malting 
such  disposition.     ',;e  ere  unalile   to  see  ho-.v  this  construction  can  be 
sustained  by  any  rule  tor  tlie  interpretation  of  statutes.     Zie  language 
of  the  St.? tut e  soeiris   to  bo  plain  and  unaiiibiguous,  and  tloe  -..'ords  must  be 
given  their  ordinai-y  meaning.     The  statute  docs  not  say  t:io.t  the  court 
shall  make  such  dispocition  -'of    tl^ir  joint  x^^'oparty.-'etc,  but  shall 
make  such  disposition   ■'of   the  property  of  tho  parties,"     niiic    language 
is  comprehensive.;    it   is   an  equitable  division  of    tho  property  ri^ts   of 
the  parties  th^.t  the  court  is  authorised  to  malie.      One   statute  defines 
'.rhat  separate  property  is,    another  -./hat  corjiaunity  property  is,  and  vAio 
sliall  liave  control  of  separate  property,    ard  vho  of  ro-^1  property,  boCi 
sepa,rate  and  co.-.i,.;uni ty;  ""iut   these  statutes  relate   to  property  rights 
dui'ing  coverture.     Hiic  statute,  hov/ever,  provides   tho.t  when  covertinr^e 
is  to  be  br-oVren,    sa.C  the  marriage  relations  dissolved,   that  the  parties 
shall  bring  into  court  all   their  propert^^,   and  a  complete   shcdng  must 
be  made.     Each  party  must  lay  dovAi  before  the  ch-rncellor  all   that  he  or 
she  lias,   and,    after  an  e::aminatio:i  into   the  \;hole  case,  lie  i-.x-kes  sn 
equitabla  division.     This  viev;  is  sti'ongtliene-d,   aid   it  searis   to  me  es- 
tablished beyond  contrcrversy  by  the  si"ceeeding  provision  of  the  section. 
•'h"vi2ig  regaid  to   the  respeativc  merits  of  th>e  parties,    ?nd  to    the 
concltiOM  in  -,l\\C\   thej'  ■..111  be  left  "..y  cucli  civorce,    r.:i5-  to  the  party 
tlii-ougli  -..hoa  the  property  \/as  adqixired."     If  t::e  coui  t  lia.s  no  jui'isdictiou 
over  tl-is  repaa-ate  property,   snC.  cjaiaot   tals   it  into    rx^count  in  making  tine 
division,    that  portion  of  the   st::tut3  'tAcli  says  it  shall  h^ve  regard  to 
the  pr.rty  thi-ougli  v;ho»n  thepropertj*  v/as  acquired,   is  meaiin-gless.     The 
lav'  does  not  reqi-ire  an  equal  divicion  of  trjsproperty,  but  a  "just   2nd 
eq':iitabl3"divii.  ion,    -nd  as  nc   general  rule  for  a  just   =:nc"    equitable 
division  c^n  l^e  laid  do  .'i,   but  eac'n  case  rnuct  be  adjusted  according  to 
its   ovai  merits   cxL  the  particular  circumstciices   sur:oundi:ig  it,   the  court 
investigates   all   the  circumEt;.nceE~(l )   cc  to  -ho  is    w  blaiue,    or,    if 
neither  party  is   bl:melei.E,   the  degree  of  bl-:me  to   be  att^ched   to  the 
respective  pc..rties.i    (2)  -..iio  is    tlie  .aore  proper  party  for   tl-.e  custody'-  of 
the  miinor  children,   if  any;    ('-<)    if   there  is    a  dispositian  of    the  property 
to  be  made,   the  .'.lanner  in  \Jhich  it  mzs  acquired,  -./hether  derived 
principally  from  the  husband  or  the  ••;ifo,   01    by  t.eir  joint  ei^ertionc; 
the  coixlition  ox    uha  parties  as  to  fge  JixC.  health,  ..nd  a  gre-t  many  con- 


loo. 

cidex-o-tions  \/hich  v/ill  aecossavily  euter  into  the  dlccretion  of  the 
coui-t  in  rnaldng  Cio  divirion.     Tiio  sa]j£,i'a.te  property  of   tlie  husband  or 
the  wife  is   eiinjly  a  circumstance  tor  the  court   to  talce  into  consider- 
ation  in  making  the  divi;;ion» 

Wiis  subject  is  no-./  regulated  very  largely  by  statute,  and  there  is 
great  sinilarity   in  the   statutes,   all  of  the:.a  investing'  tlie  court  '..'ith 
lar^e  discretioncj.-^'- :^io:;erc .     In  lov/a,   uiidsr  a  statute   substintially  like 
ours,  v/hich  provides   th:  t,   ■'■.^len  a  divorce  is  decreed,   the  court  may 
asSize   such  order  in  respect   to  the  children  s:^  property  of  the  partias, 
and  the  maintenance  of    tlie  -./ife,  as  shall  be  rij^it  and  proper.''  it  is 
held  that,  \;hen  a  divorce  is   in  favor  of   the  vdfe,  a  part  of   tie  hus- 
band's lands  may  bo   set  off   to  her  to  be  held  by  her  in  fee   simi^le. 
Jolly  V.  Jolly,    1  lov/a,    9.     In  Ilentucliy  cud  Alabama,    Cie  courts  have  re- 
fused to  divide   the  separate  property  of  either  spouse;  but,   in  the 
statutes   of   each  of    those  cta-tes  v;hich  ^ive   the   court  subL.tantially   tie 
same  discretion  that  ours  does,    thera  is   a  special  provision  or  saving 
clause,   to   tlie  effect  that  "nothing  herein  contained  shell  be  construed 
to  authorize  the  court  to    compel  either  party  to  divest  himself  or  her- 
self  of  the   title  to  re:JL  estete."     -JSiis  very  pro-.ision  is,   at  least, 
a  legislative   recognition  that  without  it  the  court  vnuld  have  po/er  to 
divest  the    title;   and  even  these  courts,    in   the  e::ercise  of  their  dis- 
cretion,   a\/ard   the  use  of  tlie   L-eparate  estate  of  one  s_-'Ouse   to    the  ot".;er 
for  life.     In  Alabama  the  wording  of  the   statute  is,   "The  court  pronounce- 
ing  a  decree  shall  order  and  dec: ee  a  division  of   the  estate  of  the 
parties   in  such  v/aj;  as    to   it  shall  seem  just    and  right,  having  due  regard 
to   tie  rights  of  each  party,  and  their  children,   if  any;"  v/ith  the  pro- 
vision quoted  above.     And  the  supreme  court,   in  construing  this  statute 
in  Lovett  v.  Lovatt,   11  ^la.   755,   says   that  the  estate  of  the  parties    ■ 
was  the   estate  held  by  eitlier  husbrnd  or  '.dfe,   or   by  them  jointly. 

V/e  sure  cleax-ly  of  the  oi-inion    that  Lee.   2007.   of   the  code  confers 
upon  the  court  the  po';er,    in  its  discretion,   to  !7iake  a  division  of   the 
separate  property  of  the  \afe  or  husb  nd.     with  this  viev^'  of  the  la"/  of 
the  case,  and   seeing  no   abuse   of  discretion  by  the  court  in  its   findings 
or  conclusions,  •.'e  are  of   tlie  opinion  tli^  t  the  judgment  should  be  affirm- 
ed. 

The  point  raised  by  tlie  appellant,    in  regaid  to   the  refusal  of   Cie 
court   to  discharge  the   receiver  after  tlie  apieal  in  this  case  Iiad  been 
taken,   v/e  think  is  not  properly  before  us,   and  v;a  liave  therefore  not 
considered  it. 

Judgtient  of  the  lower  court  afiirmed.  ,         _ 

AixLers,   C,   J.,   aad  Scott,  YxO'^jt,  end  ttiles,   JJ., Concur 


1S7. 


ELLA.  A.   CULLIVAH,  Rospondsut,   v.  DATTIHL 
CULLIVAH,  Appollcnt. 

(49  Wash.    506,   95  P. 1095). 
1908. 

Appiicction  filod  in  tke  supreme   court  April  18,  1908,   for  an  order 
directing  the  allo\/aiiGe  of  suit  monoy,   attorney's  fees,   and  alimony,  pend- 
ing an  appeal  fiom  a  jud^r.-iont  of   the  superior   couit  i'oi-  Si^a^it  county,. 
Joiner,   J.,   entered  Mai-ch  IB,   1908,   si-anting  to  the  plaintiff  a  divorce. 
Gi'anted . 

Root,   J. —  Ihis  is   an  ajpplication  Tdy  tlie  respondoat .    in  a  divorce 
case  on  appeal  to  this   Gourt,  tor   tiio  allovTancc  of  suit  money,   attorney's 
fees,  a-nrt   alimony  pendente  lite  in  this  court.     The  pov;er  of  this  coiirt 


to  maJcG  such  allov/ance"  to  the  \n.io  upon  appeal   in  such  procoediUG  lias 

"been  jjasscd  upon  in  the  case  o±   Holconib  vJiolcomTj,   just  decided  ante  p. • 

From  respondent's  application  it   appears   ti-iaf  appellant  lias  under  his 
c nntT-onrprnpm-h^_pv    flo  Talun   n-:-  rt    \fnr^r  -^^^'>A_n;)(77-TnTT7rh3rf-1rt-"bgiirT.    or 
"TlavtSg  been,   conmunity  property,   and  oi  which  $7,000  is   in  actual  cash  in 
tfie" l35inc7~sub  jec t  "to  his  chech:  or  order.     It  i^uraior^aHpcars^  that~TRe~f3- 
spoSd5nt~Eas~"^ie  care  and  custody  of  tlieir  minor  child,  afflicted~wrth 
tuberculosis  'oi  the  lun'^'S^   by  -■■nAr.nn  of   -.TJ^iTvir-'^i-ip    -if;  a-t  pre^entlander^the 
physician's  care   in  the  state  of  CalifoiTj^iaj^jJiero   it   is  necossaj^ 
hcr~wrt}i~2rgr~iai  oxaer  sister  or^thxsrespondi;^t,__and^or  whoso  cxpej^es 
rr~ii;  mc<55¥Sy~that  a  considerable  amount  of  money  shall  be  available 
j-cgul^ly;    that  the  respondeat  has  no  property  in  her  possoEsion  oi^imdor 
her_control,  and  no  jQoans^of  supp^ortins_Mrscif  or  minor-  child:;,  thart^tho 
lo\TCr  coxirt  avarded  respondent  a  decree  of  divorce  and  a  substantial  por- 
tion of  the  property,  vhich  said  decree  has,  hov-over,  been  superseded  by 
a  stay  bond  interxjosod  by  appellant  when  this  appeal  v.'as  undertaken;    that 
it  is  necessary  for  her  to  l-iave  money  to  meet  the   ordinary  ejrpenses  in- 
curred in  preparing  or  having  prepared  her  case  for  consideration  in  this 
court,  and  to  hire  the  legal  services  necessary  therefor.      It  states   tliat 
it   is  necessary  for  !:er   to  bo  av/ardod  for  herself  the  sura  of  $200,    for  he:' 
children  the  sum  of  ()150  per  month,   for  suit  money  st-lOO,   and  as  attoi-ney's 
fees  $2,500. 

T/liere  the  viifc  prevails   in  the   trial  court  and  there  is  belonging  to 
tlie  parties  a  substantial  amount  of  community  propertjr  which  is   in  the 
possession  aox.  under  the  control  of  tlie  hucbant?.,    aix.  tlic  disposition 
thereof  made  by  the  trial  court  is    supeisedod  by  the  husbjuid's  staj^  bond 
on  appeal,  and',  the  wife  lias  no  means   of  support  for  herself  and  minor 
children  and  for  legal  services  and  chargx;£  incidental  to  properly  prcpax- 
ing^and' pre  sent  iag  her  case  upon  appeal  ,__wc;  thinlz  a  sufficient  shov/in?  is  M  hVn. 
made  for  an  allowance  for  those  purposes  by  t^ii^  r.mrr-t.     As  to  the  amount 
of  attorney's  fees  to  bo  allowed  herein,   wo  are  not  called  upon  at  this 
time  to  say  \h.a.t   the  value   of  the  services  of  r.:Epondent's  attorneys   in 
representing  her  interest   in  this  court  miglit  bo,    or   to  say  v.hat  propor- 
tion,  if  any,    of   their  fcos   sliould  be  paid  by  the.  appellant  or  from  tho 
comrnunity  property,      it  is  for  us   to   allov/  at  this  time  merely  vhat  we 
thinl:  is  necessary  to  enable  her  to  secure  suitable  legal  services  for 
tho  preparation  and  presentation  of  her  case,   leaving  the  question  as  to 
the  value   of  such  services  and  tlie  manner  of  the  ij-  being  paid  in  full  to 
the  final  determination  of  the  case. 


138. 

It  appears  tliat  certain  alloYi.snc.ec  for  alimony  and  suit  money 
amounting-  to  J^ifiOO  v.-ore  rr.ndc   in  th:;   trial  cour^__It   is   tliG    order, _of_ 
this  coig-t  that  the  appe'.Iaut  te,  aiad  he  is  ]iero"by,  dirGcte(L_to  pa^  to 
tho  rcr.pondont,   for  hor  ubq.   the  t;uT.  cf  r:100  Per  month,    and  for  the  use 

and  boucfit   of  the  i:iin.cr  chll.l  the  zvrs.  of  t)loO  per  month,   a3.1  payable 


to  rccpondent  on  tl:c  I'lx-Lt  business  6.ay  of  every  month,,   said  allowance 
conip'uvjca  tram  -ii-.e  elate  of  the   filling  of  tlx  supersedeas  "oond  until   tho 
filing  of  tlx   opinion  of  this  court  upon  tho  determination  of  tl-^  case 
upon  the  merits.      It  is  further  ordered  tl:iat  ap;^ellant,,   within  ten  days 
from  tho   filinp'  n,f  tln.s  opinion,  pay  to  respondent   or  her  attorneys/tje 

sum  of  '.>75  as  t-vit  ircv'.oy,    and  tlao  furfcer  sum  of  '.^l-^O  as  attorney's 

j;3os.      'fie   orders  herein  nmlQ  shall  "bo   in  full  force  and  effect  from 
and  after  the  filing  of  ihxc   opinion. 

Hadley,   C.   J.,  Dual-ar.,   and  Crov;,   TJ.,  concur. 


Mount,  Rudhin,   and  Puller ton,   JJ. ,   dissent. 


<=y'/'-^-^, 


»  (iVtfB-'fc.-'^-Ay 


139. 


lETTIZ  HOwELL,  Appellant,  v.  L.  A.  DUiriTIlTS, 
P-OEpondont . 

(lOSTTash.    591,   107  P. 365). 

1920.' 

Appeal  from  a  jr.d^'^-.-.ent  of  tlao   cupcrior  court  for  Lincoln  county, 
Sessions,   J.,   eatoi-ed  Cctolaer  18,   1918,  dismissing  an  astioa  to  sot 

as  idog^JPro-pGrty    SnttlQ.nont    ^:;-:d    X-0  modify   p   flpr.rno    n-r    r'.  ^■\rnT  r.p  ^  ^JcAHK. 

to  Bie~courti     Rovers od. 

Tolman,   J. — Prior  to  April,   19K-,    t^ie  respondeat  and  appellant 
\7ere  husTjanc".  and  \;iio,  residing  together  as  suc.Ii  in  the  tovm  of  Hairring- 
ton,   './hich  had  been  their  liome  for  several  years.     At  practically  t]ib 
Earae  time,   tl-c  respondent,   through  his  attorney  at  Davenport,  aiid  the 
appellant,    through  her  attorney  at  Spokane,   each  began  a  suijt_for  di- 
vorce from  the    otlier,   and  shortly  after  tha— sej^viOQ  of^the-rePTtPCtive 
complaints,   tlie  parties  composed  their  differences  and  resumed  the^ir 
marital  relations.     ITothing  v/as  done   towards  dismissing  either  Euit7~ 
ancTWgx  parties  appoarad  to  have  considered  that  both^ctions  \vere   then 
abandoneoT^     ^^^]yeg~later .    on  A'0ril~T5~'T^15r~troulile 'ajmin  arose  "Bo^^ 
ttreeiTtg  part  ie  s  ,~ancr~it  \vas  agreed  betvjeen  them  that^  they  shoulti.  -  go  - 
to^ DavenporE~~aid  the  husband  shouIdTs^ciargnardl^grce'upon  the   complaint 
v/hich  he  had  prGpra*ed  and  served  a  ye^  before^  and  then,    or  on  the  vSjr 
toTJavenport,   tae  husband  siaggested  thatTT  i^-  vit;\/  of  hxc  j.iabilitios 
and  obi igatloaSj__he_c ould  pay  her  but  OgJ_000,  and  that  only  in  install- 
ments, \^lch  \7ould  be  her  fair  share  of  tio  comi:>unity  property,   and  the 
remainder  of  tlB  pr'qporty  should  become  his  separate  estate;   explaining 
in  some  detail,   accoixling'  to  appellant's  testimony,    that  he  '.vas  heavily 
in  debt;    that  tlie  c::poascs  of  his  business  absorbed  the  profits,  and 
that,  after  deducting  tlis   indebtedncr.s,    the  comir!ti.nity  estate  v/as  not 
\70rth  to  exceed  05, 000.     Typn  -viffi  n:n?"^ossed  a  \/ish  to  have  her  attorney 
present,  and  to  have  the  benefit  of  his  advice,  but  thc^  hiVsband  assured 

hev'^ETTal:   VlcmTc]    -hTTT-.  nRr^T  arr    r^-jsnnf^n.      ,n:nfl,_tlTa  h^tiy^^r^opoRfid    §5,000    sett^e- 

ment__\jas  all  t3iat  the  coiirt  would  gi-ve  her  in  any  event.     The  husband 
denies   that  ho   told  his  v/ife  tliat  the  value  of  t:-j2  coraiminity  property 
was  only  C>6,000,   but  does  not  deny  that  the  wi.fe  -v/as  entirely  without 
business  experience;  had  no  loiowlodgo  of  his  business,    its  value  and 
earnings;    that  he  had  enjoined  x;pon  her  the   strictest  economy,   because 
he  claimed  he  v/as  overburdened  with  indcbtsdnr?ss;  liad  refused  her  re- 
cfaostG  for  money  for   the  same  reason,   and  testified  that  he  never,   at 
any  time,   told  her  the  value  of  tbsir  joint  property,   and  seems   tacitly 
to  admit   tliat  the  v/ife  relied  upon  him  to  be  fair  in  the  matter.     The 
j«.fe^  as  she  nov/  claims,  believing  that  tlie  net  value  of  the  community 
"property  v/as  O^jOOOj    '"^Jad  relying  upon  the  husband's  stateix>nt  va  Ci  re- 
spect tlioreto,   consented  to  the  decree  av.-ardiag  tlie  husbaM  the  divorce 
and  the  custody~or~t!trec   of  their  five  childronr"and  a\/arding  her  the 


__cus to^^~oiM;he   tv/o  remaining  children,   \7ith  a  provision  for  ^25  per 
montS~to~bo~paiar  by  tha^huSbSal   Luwax'ds    Lliuir  brcgrpor t ^  anT  a  pr qpor ^ 

"leTtl'Sment  of  $5,000,  payable  0500  in  cash  and  the  balance  in  annual 
ins t^aHments ,  vaTn  interest. 


140. 

It  ie   admitted  that  the  Imsband 'g  attorney  under  too':  to  act  for 
both  in  arraiisin^  the  property  cottlomcnt   and  procuring  the   entry  of 
tlic  docrcG,   and  there  is  notliin^'  in  tlic   record  to  indicate  tliat  the  at- 
torney acted  in  any  other  tlian  a  fair  and  irrpartial  manner  respecting 
the  cettleacut.     neither  is  there  anything  to  indicate  that  the  attorney 
laio\/  anything  more  of  the   value  of  the  community  propertjr  or  the  earning 
capacity  of  the  business  carried  on  by  the  husband  tlmn  did  the  vdfe. 
And,  acting  for  both  upon  a  stibject  upon  -liich  they  were  apparently 
agreed,    there  appears   to  liave  been  no  reason  for  hin  to  las.'k.o  such  an 
investigation  as  mi^Jit  h.ave  been  thouglit  proper  by  one  acting  solely  in 
t!ie    interest  of  the  •.?ifG.     After  tlio  eatr^;-   oi^_the   decree,    Cie  \/ife  -aent 
to  Calif ornia-   and  in  the  fall  of  1916  first  learned  facts  Ciat~ln£i^at- 
cd  tliat  she  Imd  boon  deceived  in  the  property  settlement,  and  thereafter 
brought    fa  is    actlj3iL,_attac];ing^"Qnly  Lhal  ^jQition  of  the  dccreTj  'rSilch^ 
prov_idcsfor  the  property  settreamt".     ?roa  an  advorse^judgment  beloy/, 
she~^pDals . 

Considering  the  nature  of  tha  case,    tlie  evidence   is  singularly  lack- 
ii^'  in  conflict  upon  most  of  the  vital  points.     As  alrcafiy  atated,    tho 
respondent  acijaits  tliat  appellant,  -diile  his   -.dfo,   loie'./  nothing  about   tiie 
details  of  the  business;   does  not  deny  tliat  hj3  commonly  refused  her  in- 
fo una  tion  Aiicn  six   inquired,  and  one  reading  the  record  can  hardly  os- 
capip  th-^  conclusion,    whether  tlu   husband's   testimony  is  accjptod,    or  tho 
testimony  of  tlii  wife,   that  the  \7ifo  relied  absolutely  upon  th-   husband 
in  this  matter  of   tlii  property  scttlcitcnt.      2ais  being  so,    in  dividing 
tl:iat  \iaiich  belonged  equally  to  both,  but  v^ich  tho  la'./ placed  exclusive- 
ly in  the  possession  and  control  of  tho  husband,  common  justice,    common 
fairness,  and  the  lav;,  ell  alike,  rocuirc   the  husband  to  disclose  fully 
the  nature  and  value  of  the  property   to  be  divided  and  to  make  a  fair 
division,   or  else  put    the  mfo  on  notice  that   tiiey  v;erc  dealing  at  arm's 
length  aiid  advise  h^r  to  seek  counsel  and  receive  jissistanco  from  some 
other  source.     Hormilo  v.  Denison,   9  Y/ash.  Dec.  181,   166  Pac. —     2he 
husband,  leaving  dissuaded  the  v;ife  from  seeking  the   advice  of  her  o-.m 
attca'ney,  must  assume  the  same  loyalty   to  her  interest  as  her  attorney 
v.'ould  have  shovni,  aji'-  v;l-i2thcr  hie  fraud  be  active  or  passive  is   iimnater- 
ial. 

Oliat  the  amount  paid  to    fiia  iTifc  Mas  grossly  inadec[uato   is  practi- 
cally admitted.     Hie  husband  himself   testified  in  his  ov/n  behalf  as  to 
tho  value   of  this  comiiiunity  property  at  tho  time  of  the  scttloroent,    as 
follov/s; 

"Q.     Aro  you  able   to  give  at  this  tine  what  your  property,  v;!iat  you 
considered  your  property  was  A.orth  at  t!iat  ti;.r    over  and  above  your  debts, 
over  your  liabilities?    A.  Tlliy,    I  should  L-.iagine   it  was  -./orth  fio..; 
.^12,000  to  ^14,000.     1  wouldn't   say  \'hotliar  it  was  wcrtli  that  lauch  or 
less.     It  could  not  liave  "been  v.prth  over  that." 

T.Tiile  his  bookkeeper,  to  viiom  ho  referred  all  questions  of  figures, 
and  who,   as  he  stated,   Icnew  all  about  his  financial  affJiirs,    testified 
tliat  the  net  assets  of  th.3  firm  in  which,  the  husband  was  a  partner  and 
half  ovmer,  for  the  year  1914,  being  the  -joax  inmedir.tely  preceding  the 
entry  of  tlae  decroo,  wore  of  the  value    of  $45.0o6.80,   anc.  tiie  net  profits 
of  thj  firm  for  that  yoar  v/ei-e  (>15,495.95.     In  1215,   the  year  tlie  decree 


/Yff  A-e-  ^c-    ,..^C<X!X<P     <:i..e..^^^^^i>/^  ^iiii^^itU^^^ 


■^<^*^^ 


CL^ 


141. 

was  entorcd,    tli;  firm  made:  a  not  profit   of  §45,145.68,    and  in  1916  tho 
uct  profit  \;as  '.;63,017.79.     Admittias  that  these  arc  book  prof  its  only, 
and  tliat  thoy  might  novor  be  realized  in  full,  still,   at  tho  beginning 
of  the  year  1917.,    rcepondont  bought  out  hie  partner's   interest   in  the 
firm  and,   accordiag  to  his  o\7n  testimony,  paid  him  v;55,000  thorofor. 
The  bookkoopor,  \vho  appears   to  liavo  had  a  thoroxigh  loiov/lodgc  of  conditions, 
also  places  a  value  upon  rospoudent's  interest  in  the  firm,   at  tho  time 
the  decree  -..'as  entered,   of  025,000,  \;hich  valuation  respondent   in  no  \;ay 
disputes.     Taking  the  bookkeeper's  figures  as   to  the  value  of  thr.t  part 
of  the  community  property   invested  in  the;  partnership,  an3.  adding  to  it 
$2,000,  \/hich  respondeat  himself  fljcod  as   the  value  of  the  community 
property  not  invested  in  tho  partnership,   wo  have  a  coiimunity  estate  val- 
ued at  ('.27,000,   the  v^ole  of  ;.-hich  tlie  husband  sccIs   to   retain,   after 
paying  the  \;ifo,  \/ho,   co  far  as  appears,  lias  done  her  full  sliare  in  help- 
ing to  acquire   it,  but  a  small   fraction  thereof.     Eespondeat   testified 
to  community  indebtedness  outside  tlie  partnership  of  $10,149.     TSiile  this 
appears  only  by  his  testimony,  zx£-   there  are  some  facts  sho'.ai  \iiich  cast 
doubt  upon  soce  of  tlie  items  included,  yet  v/e  are  disposed,  under  the 
record,   to  allov/  this   offset,    tiis  reducing  tiie  net  value  of  tl-B  commun- 
ity  property^   at  the  time   of  the  entry  of  the  decree,    to~vl6,65l,   the 
wife's  half  of  which  \;as  :':ft  ,A9P;,.i=;n.     -npriiiriting  fiie  sum  of  vj5,000  already 
paid  her,  she  should  bo  allowed  the  difference  of  $5,425.50. 

Appellant  asl:s  us,    if  \!0  find  Cie  vife  lias  been  defrauded,    to  treat 
the  community  estate  z.t  undi\-ided,    order  an  accounting,   and  give  the  v/ife 
the  benefit  of   the  earnings  subsequent  to    tlie  entry  of    fiie  decree.      This 
we  caxmot  do,   for  the  community  \/as  then  dissolved;    it  v/as   the  purpose 
to  then  divide  tlie  community  property,  and  IhG  \/ife   is  entitled   to  receive 
v;hat  she  would  liave  received  if  no  fraud  had  been  practiced  upon  her, 
plus  only  legal  interest  during  the  tine  it  lias  been  \dtlilield  from  her. 


JudgiDsnt  reversed. 


^=^ 


\^\ 


Holcomb,  Go  J.,  Mount.  Bridges,  and  Pullerton,  JJ.,  concur 


/--^^.^ 


142. 


DUllPHl'  V .  DUBPIIY      (S » ? .    5 ,  702 . ) 

(SiiTprerce  Court  of  Calif oi-uia.     Oct.   5,   1911.) 
(161  Cal.   87) 

Departireat  1.     Appeal  from  Superior  Court,   City  ciid  County  of  Sau 
Praucicco;   Jarces  I!    Eeav.'ell,   Judge. 

^ction  by  James  C    Dunphy^_Jb;^Jeimie  C    Dvjxghy.,  lais  guardian  ad 
litem,  agaiustTiydie  TT  Funphy.     From  au  order  directing  plaintiff  to 
pay  moneyt"Q"deiond3.nt  to  eaablfl„hor  tn  prnpgci.it(?  aTmotioa  fnr  nR-v  trial  _ 
ajod  an  appeal.  He"  appeals.     Affirmed . 

Angellotti,   J.    _Eiis_i_s  an  appeal  from  an  order  directing  plaintiff 
to  Pay  defendant  v'2,0Q0,    to  enatile  Iier  to  prosecute  her  motion  for  nev: 
trial  and   appeal,    in  an  action  "brought  against  her  to  annul    tl^e  marriage 
soleianized  tetygen  herself  a^V   pTr>int:i-F-r  nn  .Tn-ng  ^Z,   1909. 

2he  complaint  in  that  action  alleged  that  on  said  day  the  plaintiff 
and  defendant  vTere'lharriedr^a^r  this  allegation  •'.. 'as  adonitted  by  the  ans-  " 
v/ir  aH~f oui^  by  the   trial  court  to  be  true.     It  further  alleged,   as  the 
grourd  of  the  annulment  sought,  that  at  the  tine  of  such  marriage  the 
plaintiff  was,  and  ever  since  hafi  been,    "of  unso^Jind  mind,  •  and  that  the 
plaintiff  lias  never  freely  cohabited  with  the  defendant  as  her  husband, 
Tliese  allegations  v.-ere  denied  by  tl:e  answer.      Tlie  trial  court  found  that 
the  plaintiff  \7as  "of  uacound  mind"  at   the  time  of  the  /carriage  and  un- 
til after  July  21,   1902,   and  that  the  plaintiff  has  never  since  said  mar- 
riage freely  cohabited  -.dth  the  defendant  as  her  husband,   and  gave  judg- 
ment annulling  the  rarriage.     Defendant  duly  inaugurated  her  proceedings 
on  motion  for  a  ne\7  trial  and  for  a  review  of  the  action  of  the   trial 
coui't  by  this  court.      It  was  not  disputed  that  Ehe    is  prosecuting  svcli 
proceedings  in  good  faith  aixL  with  reasonable  grounds  therefor,    that 
she  is  -without  the  means   of  payiug  tlie  costs  thereof,    a:id    tlaat   the  amount 
allovred  by  the   trial  court  is   reasonably  nececsar;'  to  enable  her  to  pay 
such  expense.     An  appeal  from  the  judgment   of  the  superior  court  v/as 
talffia  on  July  20,   1909,  and  such  appeal  is   still  pending.     Hie  sole  con- 
tention of  appellant   is  that   tlie  court  hsd  no  jurisdiction  to  male   the 
order,   and   that   tl-x?  evidence  was   insufficient   to  justify  the  same,    "in 
Giat  there  is  no  evidence  to   show,  and  the  evidence  fails  to  show,    that 
defendant  and  cross -complainant   is   or  ever  v.r.E   tI-J3  v/iie   of  plaintiff  and 
cross-defendant .  ' 

Appellant's  point  is  that,   to  justify  an  order  requiring  the  payment 
of  money  to  enable  the  defendant  to  prosecute  her  motion  for  a  nev  trial 
and  appeal,    the  marital  relation  must  be  admitted,    or  sho\rn  by  a  pre- 
ponderance of  evidence.      In  support  of   Giis  claim  Hite  v,  Hite,    124  Cal. 
Cie9,   57  Pac.   227,   45  L.E  A,   795,    71  Am    St-  Rep.   82,    is  relied  upon. 
2Iiat  case  -w-as  an  action  for  divorce  by  the  \;oman  on  the  ground  of  adult- 
ery,  and  by  the  defendant's  ausv.-er  the  allegation  of  the  complaint  that 
tlie  parties  v;ere  married  v/as  squaroly  denied.      In  this  state  of  the 
pleadings,   upon  an  appeal  from  an  order  allov.'ing  the  plaintiff  alimony, 
counsel  fees,   and  e::pense  of  suit,    it  was  held  tliat  to  justify  alimony 


145. 

marriage  luus  t  "bo  adjnlttGc.,    or  proven  to  t]ic  Eatitfaction  oi*  tl'£  jud^e 
to  -.hom  tho  application  iz  made.     Kiat  clecicion  lias  never  "beeu  a/errulocl 
or  cuestioued.     But   tlio  aiicwer  to  appollant' r,  claiiii  aif.  the  di  ctinguisli- 
in^  feature  'bet\;oen   J-Jvls  c.nr>c  and  Hite  v.  Hite,    supra,    is  tlist  here   the 
narriace  ic  allegod  "by  the  plaintiff,  and  stands  af'mltted  liy   tl£  pload- 
in^s.     AdjDltting  fiio  fact   of  narria.;^©,  plaintiff  sou^Iit    to  lia-ve  the  mar- 
riage annull.-^d  on  the  ground  t]iat  he  \;aE   of  nar.onnt'   }ti5::v":    at   tZao    time  of 
tho  iTiAi-r  ia-se .      Civ,    Code,   Sec.    82,    sulid,    u. 

(Ij    It  \/as  held  by  this  court,    in  the  recent  case  of  In  re   Gregor- 
son'G  Ustate,    116  Pac.   60,    tlr^.t  the  effect  of  our  ctatutcs  is   tl-^t  such 
a  marriage  ic  not  void  sTd   initio,   and.   is  free  from  attack,   e::cept  in 
proceedings  tor  cimulracnt,  "brou^it  "by  tl:e  party  injured,    or  on  "behalf  of 
the  party  Qf  unsouLx'.  nind,  C.virlug  tis    lives   of  "both  parties    (sections  82 
and  85,   Civ     Code),   a:x.  that  consequently  tlx  validity  of  the  marriage 
cannot  "be  questioned  after  the  death  of  tlB  "./ife,    in  proceedings  for  the 
appointment   of  an  adj-ainistrator     of  her  estate.      It  -..as  recognized  that. 
in  the  aTDsence  of  any  statute  providing  other-.aso,    the  great  -..^iglit  of 
authority  is  to  the  contrary'';  hut   it  ■.;as  Eho-.,ii  by  an  exloaustive  consid- 
eration of  GUI-  statutes   that  tlie  Legislatui-e  has  made  such  a  marriage 
valid  ani  free  from  attaclc,    ooxept   in  the  aiuiulment  proceeding  already 
referred  to.      In  tZia   a-bsGnce  of  a  decree  of  annulnsnt.    it   is  valid,   not 
only  against  the  v/orld,  "but   also  as  "betJcen  the  parties.     Coats  v     Goats, 
118  Pac.   4-41.     A  merely  voidable  marriage    -laust  be  treated  as  valid  for 
all  civil  purposes  until  annulled  by  jtidicial  decree."     £tate  v.  Lo-.tbII, 
78  Minn.   166,   80  H.   \7.    877,   46  l.R.A     440,    79  Am-  Et     P.ep.   558;  ^'.'illits 
V.    ./illits,    76  ITeb.   §28,    107  H     17,   579,    5  L.   ?..  A      (IT.   S-)   767.      It  i7ould 
appear  to  necessarilj-  folio-;  that,  so  far   as  the  ennulmcnt  proceedings 
are  concerned,    it  uuct  continue   to  be  accepted  as  a  valid  mai-riage  until 
the  decree  of  annulment   tl^ijrein  has  become  final. 

Uie  paver   to  alio"/ alimonj!-  in  cases  of  annulroent   oi'  marriage  ■v.^s 
fully  recognized  b;'-  Chief  Justice  Beatty  in  his  concnrring  opinion  in 
Kite  V.  Hite     E^Ipra,   \;here,   after  saj^ing  that  it   is   only  a  -./ife  \/ho  can 
claim  alimony,  axf.  vfiaon  the  fact  of  marriag-e  is   in  issue  and  unproved 
ti:ere  is  no  one   in  that  position,   said:     ''If  a  husband  sues  for  divorce, 
alleging  a  marv large,    of  c  airso  there  can  be  no  question  of  tic   right  ta 
aliraonjir,    if  l:ie    is  able  to  pay  azai  the  v/ife  is  in  need.     If  he  sues  to 
annul  a  marriage  upon  tne  ground  that  it  v.as  void,   ab  initio,  by  reason 
of  fraud,  precontract,    insanit3^,   ot  cetera,   then  the  granting  of  alimony 
pendente  lite  -..TDuld  be  proper,  because  a  fomal  marriage  is  alleg-ed.   and 
•.111  remain  a  la"'ful  ciad  establisliod  marriage,    in  the  absence  of  affirma- 
tive proof  by  him  of  the   existence  of  sor.s  fact  or  facts   ..hich  vail  in- 
validate it.     In  such  a  case,    I  corrode  tlie  proprict;^  and  justice  of  al- 
lo-ving  the  '..dfo    (for,   tmtil  the  fraud  or   otZier  invalidating  circ-urastances 
are  establislied,   she  is  tl:e  v/ife)  money   to  mal;e  her  defense.-' 

It  v.as  definitely  decided' by  this  court,    in  the  later  case  of  Allen 
V,  Superior  Court,   155  Cal.   5C4,    65  Pac.   977,    that  tlE  superior  court 
may  rer^uire  tte  husband  prosecuting  an  action  against  the  v;ife  for  annul- 
ment of   tlie  marriage  on  tl-i3  g-ro'und  of  fi-aud  to  pay  the  v/ife  such  mone3i'  as 
is   2Ct''.ially  necessary  to  enable  her  to  male  her  defense.      Eie  c  curt  said: 
"As   to   suit  money  the    right  of  tl:^  v/ife  cannot  be  denied.     lentil  her  al- 
leged fraud  is   establislxid,   she  remains  the   lav.l^l  v/ife  of  tZie  petitioner. 


144. 

axid.  has  the  same  right   to  defend  the  action  to  annul   the  marriage  that 
he  has  to  prorecute  it,    cuS.,    until   she    is  provided  with  the  means   actual-- 
ly  necessary   to  mal-ce  her  defense,    she   ouglit  not  to  "be   forced  into  a  trial- 
This   conclusion  is  sustained  by  all  the   opinions,  concurring  and  dis- 
senting,   in  the  case  of  Hito  v.  Hite,    124  Cal.   o89    (57  Pac.   227,   45  L,  R. 
A.   795,   71  Am.  St.  Hep.  82 )i'     This   is   in  accord  v/ith  the  great  weiglit  of 
authority.     In  come  of  the  decisions,    the   conclusion  of  the  court  re- 
quiring the  husband  to  mals  such  payments  is  based  on  statutes  held  to 
confer  the  power;   but,   vhere  it  is  held  that  tl"j3   only  statute  on  the  sub- 
ject is  one  limited  to  proceedings  for  divorce  for  some  cause  occurring 
after  the  marriage,   it  is  further  generally  held,   to  use   tie   language  of 
the  Hew  York  Court  of  Appeals,    in  Kiggins  v.  Sl:s.rpe,    154  H    Y.  4,    8,    58 
n.  E.   9,   10,   as  follovTt;:      "Eie  general  jurisdiction  conferred  by  the   stat- 
ute to  entertain  such  actions  carries  v/ith  it,  by  implication,   every  in- 
cidental pov.er  necessary  for  its  proper  e:cercise.     Vihen  a  statute  gives 
the  court  jurisdiction  over  a  class   of  actions,   it   is  not  necessary  that 
all  the  pov;ers   of  the  court,   or  all  the  details  of  the  procedure  and 
practice,   should  be  specially  enumerated.     For   Sie  purpose  of  administer- 
ing justice  in  such  cases,   the  court  may  *  *  *  exercise  such  incidental 
poY.-ers  as  are  usual  or  necessary  in  such  cases.     11^3  pajer  to  allow  ali- 
mony ani  counsel  fees  to  the  v/ife,    in  order  to  enable  har  to  live  pending 
tlae  action,   and  to  present  her  defense,    if  she  has   one,   just  be  regarded 
as  incidental  and  necessai-y  in  all  natriraonial  actions,     V/ithout  cuch 
po-.ver,   the  rights   of  the  woman  in  many  cases  could  not  be  adequately  pro- 
tected.    It  seems  to  us,   therefcare,   that  actions   to  annul  a  marriage  are 
governed,  v/ith   resjject  tn  alimony  aad  counsel  fees,  by  the   same  principles 
as  all  other  actions  for  divorce.     VZIien  the  court  v/as  vested  \/ith  juris- 
diction in  such  cases,  the  incidental  power  to  guard  aa^-  protect  the 
ri^ats  of  the  wife,   -.hich  had  al".7ays  been  regarded  as  a  part  of  the   jur- 
isdiction, necessarily  follov--ed  and  attached  upon  the  plainest  principles 
of  reason  and  justice."       See,    also.  Hunt  v.  Hunt,   25  Old..  490,   100  Pac 
541,   22  L.   R-   A-    (H.  S.)   1202,   V/iHits  v.   V/illits,   76  Keb.   228.    107  H.  T7, 
S79,    5  L.R.A;    (U.S.)  767;   Yroom  v.  Fiarch,    29  N.   J.  Eq.  15;   V/ebb  v.   Broolce, 
144  Mich     574,   108  IT.  Vi.  558; "Arey  v.  Ai'ey,   22  ^iash     261,   60  Pac.   724; 
Eliot  v.  Eliot,    77  T.'is.   654,  46  H    V/.  806,   10  L.R.A.  568;   Lchroter  v. 
Schroter,   57  Iliso.  Rep.  199,   107  13.  Y.  Supp ,  1065.   2  Am.  £  Eng.  Ency.   of 
Law,  p.  104,   and  note  5.      Ihe  later  Hev/  York  case  of  Jones  v.  Brinsmade, 
185  N.  Y.   258,    76  H.   E.   22,    5  L.R.A      (H.S.  )  192,  111  Am.  St.  Rep.   746,    in 
no  way  affects  the  rule  declared  in  the  earlier  cases. 

(2)  Learned  counsel  do  not  seriously  question  the  power  of  the  trial 
court  to  allow  the  wife  suit  money  in  such  cases  up  to  such  time  as  the 
husband  establishes  to  the  satisfaction  of  suih  court  that  the  marriage 
should  be  annulled,  but  earnestly  contends  that  a  decree  of  the  lower 
cota-t,   annulliiTg  the  marriage,  bars  any  sllov/ance  from  the  time  the   trial 
court  maJtes   its  decree,   notv/ithstandiug  that  the  juc^.gmcnt  lias  not  becons 
final  and  the  -.vife  is   in  good  faith  and  v/ith  due  diligence  prosecuting  an 
appeal  therefrom.     Tlie  power  to  malce   the  allov/anco  to  the  tine   of  judg- 
ment being  established,  v;e  can  see  no  reasonable  ground  for  holding  that 
it  does  not  e::ist  to  the  time   the  judgment  becor.es  final.      It   is  settled 
that  in  ordinary  divorce  actions  the  po\/er  exists  as  loig  as   the   action 
is  peudhig,  v/hach  is   from   the   tiii:e   of  tlie  c  orrmenc ement   of  the  action 
"until  its  final  determination  on  appeal,   or  until  the  time  far  appeal  has 
passed,  unless  the  judgment    is  sooner  satisfied."    Section  1049,   Code  Civ, 


If     ,      yCc^ --i^i^'-^-^'''^^     -" 


/ 


.cS'<^C*^'7f't^ 


i-<<;^^-^ 


)    ^ — -    ^ 


£l,-<i^<ii«'i-c^ 


^^Jl^-fi-X^   C^^.^'C^  , 


y^/.-'lxr^  , 


145. 

Proc.     The  same  considerations  vhich  oaktj  cuih.  pov.er,   peiiding  appeal 
from  thG  judgnE'xit    of  tho    trial  couit,    ecsGii.tial   to  the  adequate  prctoo- 
tion  of  the  v/ife,    in  aii  ordinary'-  action  for  dj.voroe,   are  present   in  an 
action  ty  the  hur^'band  fcr  ar.nulnent   of  the  marriage;  and    the  reasor.G 
given  "by  tho  courts  for  holding  tloat  the  pov/or  oriists   in  the  annulment 
action,    independent  of  'rrpress  statutox-j''  prc/iE^ion,  warrant   the  eL-ceroj.o.'? 
of   the  pov/er,   as  long  as   it   is  essential  to  cnaole   the  \.lfe  to  raake  such 
defense  in  tho  annulment   action  as  sIb  may  have,   including  necessarily 
such  ri^ts  as  are  given  her  "by  the   lav;  to  have  the  action  of  the  trial 
court  reviewed  on  appeal.      Tin  ri;'5it   to  mate  stch  an  allo'.rance   to  the  \75. fe 
pend.i:is  appeal  has  t^een  upheld   in  some  of  tlie  oases  ateady  cited,   a'ld, 
as  already  said,   the  rigit  to  malce  tho  allov/ance  before  judgment   once 
■being  estahlisl^d,   \.-e  can  see  no  sound  leason  for  denying  the  power,,   so 
far  as   it  may  he  essential  to  the  wife's  prosecution  of  the  appeal  given 
her  by  law  from  such  judgiicnt.     For  all  the  purposes  of  the  annulme:n; 
action,   so  lo:ig  as  thj3  action  is  pending,   to  use  the   lai^iguage  of  Brinlz- 
ley  V.  Brinkl^y,    50  IT.  Y.  186,   10  Am.  Rep.  460,    ''the  relation  actially 
e:cists  upon  vhich  the  riglat  to  alimony  deisnds." 

So  that,   even  if   section  157  of   the  Civil  Code,   providing  fear  ali- 
mony aiid  cost  none^r  in  an  "action  lor  dirorce,  '  does  not  "by  its   terms 
include  actions  lor  annulment,   the  v/eight  of  authority  is  i:.  favor  of 
the   existence   of  the  power  as  to  cost  money,  notwithstanding  the  absence 
of  e:cpresE  ctatvitory  autliority,  and  oy  reason  of  the  general  jurisdiction 
ercpresslj'-  conferred  to  entertain  such  actions;   and  Allen  v.  Superior 
Court,    153  Cal.    504,    65  Pac.    977,   mu£t  he   taken  as  deciding ;.that  suit 
pov/er  exists   in  this  scats.     In  viev/  of  what  •'«  have  saiS. ,    it  must  also 
he  held  that  such  pov;er  exists  as   long  as  tlie  annulment  action  is  pending. 
But  there  is  much  force  in   fiie  claim  that   ftie   term  "action  for  divorce,' 
in  section  157,    Civil  Cede,    inclrdes-  such,  actions   x  a-  an:rjlncnt  as  sxo 
provided  for  in  sections  81  and  82  of  the  Civil  Code.     Section  157  is  a 
part  of  article  4  of  chajter  2,    tit.   1,  pt.  5,    of  the  Civil  Cede,    an  ar- 
ticle entitled  "General  Provisions  -  ••     Chapter  2  is  entii:l3d  "Divorce/' 
and  contains  four  avticlos;    article  1  being  entitled  'Tlullity,"  and  em- 
bracing the  provisions  stating  the  caajses  for  cnnuL'nent  and  providing  far 
the  proceeding's   to   obtain  such  relief;   article  2  being  entitled  "Disso- 
lution of  liarr  iage,  ■'  and  providing  for  o:.diiiary  divorce  proceedings;   ar- 
ticle 5  being  entitled  "Causes  for  Deny ii^-  Divorce";  and  article  4,   as 
already  stated,  being  entitled  "General  Provisions."     It   is  apparent  that 
tlic   term  "Divorce,"  constituting  tlie   title  of  chapter  2,  was  used  as  in- 
cluding ai^nulmont  proceedings,   as  well  as  divorce  proceedings,  for  causes 
occurring  after  mai-riage;   snd  it  may  well  be  argued  that  such  provisions 
in  the   siibdivision  entitled  "General  Provisions"  as  are  appropriate   in 
actions  for  annulment  are  applicable   thereto.     However,   it  is  not  neces- 
sary to  definitely  decide  this  c^uestion  here,    in  view  of  vh.at  we  have  al- 
ready said, 

ihe  order  appealed  from  is  affirmed .  ,  -  6  t--      \^  \  ^ 

We  concur:      Sjiav.',    J.;  Sloss,   J. 


146, 


COATS   V.  C0A2i. 

(L.   F.   5,415.) 
(160  Cal.    671,1911) 

Iia  Bank.     Appoal  i'rom  Superior  Court,  cit3'-  and  County  of  San 
Francisco;   James  li.   Troutt,   Jvf.^e, 

Action  'oy  Ida  jlj.  Corts  arcainst -Lqf!  ?..  Cent s .     Judga en k^fov  Plaintiff » 
and  defendant  appeals.     Afi'iri-aed. 

Sloss,   J.     ?lie  plaintiff  and   the  defendaiit  in^rmaixiftT'   '^'"'  iTnvf\,.-i;ifir, 
1807.     In  January,  ivub,   the  delendant.   Lee  B.  Coats,   obtained  a  juda-^ent 
annulling  the  mar^ia:;e,   on  the  groimd  of  the  physical  incapacity  of  the 
plaintiff,"  Icia  M^v;oatsT     .If ter  snch  .judgment  had  become  finalT  t::is 
action  was  coiaaencod  to  obtain  a  division  of   the  property  v/hich  had  tieen 
accuinula'ted  "by  tne  parties  during  the  e::istence^f__aiejgarriage.     gi^ 
GOurt_bglo-./  gavn  thp.  pT.Ti^-itif-r  juc..-:;:nent~Tor  '-10.000.     From  t:iis  judG.'Lieat, 
th£  defondaiit  appeals.     Kie  appeal  is  tal:on  on  th.e  jiidgraent  roll  alone. 

2he  findings  are  as  follo^.'s:  Tlie  plaintiff  and  the  defend::nt  inter- 
married in  the  county  ox  Tulare,  oiToi  a"bo'-it  the  26121  day  uf  IToveuilmx;  ' 
16^7,  rTnd  lived  togetlior  tha-eafter  continuously  until  on  or  about  Ihe 
9th  day'  of  Ja^raary,  1906^  (Ja  or  about  said  yth'Xay  of  January, ~1 906,  the 
defendant  herglu,  Lbe  B.rCoats,  coLmenced  an  acting  in  thg_superior  coui-t 
of  Los  .'gigeles  county  to  aiinul  his  r.iarriage  v'iuli  the  plaintiff  herein  up- 
on the  sole~ ground  tliet  said  Ida  H.  Coats  -/as  at  -ylie  time  of  their 
"marriage  physiccily^incapable  of  entering  into  the  marriage  st^te,   that 


sucn  incax^acity  had  continued  -gutil  the~l;ime  of  tl:!.e  fili'n?  of   the_r,on")1.?i'i"'t 
in  saicT  a:inui.nent  EuiFT'and  tliat  the   same  -\/as  incin-p"hlfi-      On  the  16th  day 
of  January,   1906,   the  said  coui-t  duly  gave  and  i.iade  its  judgment  aixl  de- 
cree,  annulling  the  marriage  t^on  said  ground  of  incapacity.     Tlie  ilain-_ 
tiff  entered  iuto  said  mai-riage  relation  in  the  full  belief,    in  good  faith. 
that  sh3  \/as  physically  capable  of  mariying,   and  she  continued  in  good 
faith  in  said  belief  for  more   tha-i  18  years   thereafter ,   and  up  to  the  date 
J£_the  filing  of  tl.e  com:^-laint  in  said  action  for  annulment.     During  the       n;^  ,^v 
ercistenco  of   said  mai'riage  relation  betv/een  plaintiff  and  defendant,   there        — !!: 
•.;aE  accuinula^ted  a  lar',-elp-j:iount  of  pro;:'erty.     Tlie  eftorts"  oTH^otla  plaint"xff 
and  defendaiit  •jere  devoted  constantly  and  at  all  times  during  said  m£.r- 
riage  to   the  best  inte-ests  of  each  oth-sr  in  the  £,CGu;;iulation  of  said  prop- 
erty.    Atjtlie    time  of   the  marriage,   tliQ  defendant  was  engaged  in  farming, 
in  partnership  -v/ith  his  brother,   in  C?ular^_ajamt;'',   Cal.,   and  the  said 
partnership  at  tliat  time  owned  pe.sonal  px'Operty  in  \hiGli  the  defenif-ant 
had  an  interest  \;ort'i  not   to  exceed  ./o,000.     Prior  to  the  mariiage,    the 
defendant   o'./nod  an  undivic-ad  interest  in  a  160-acre  ti  -ct  of  Isnd  in 
2ulare  county.      /ith  the  exception  of  his  interest  in  the  partnership  and 
in  this  tract,   the  defendant  oiiod  no  property  at   tlie  time  of  the  marriage 
T/ith  the  plaintiff.     For  ten  yeors  after  tlie  marriage,   the  plaintiff  zjid. 
the  defe:uLant  v;ere  engaged  iia  farming  the  land  referred  to,   and  other 
lands,  ".^.ich  \;sre  rented  by  defendant  jointly  v.lth  his  brotI:or,   or  in- 
dividually.    Luring  this  perioc'.,    the  defendant  corxlvxtec.    tie   ir.ri.iing- 


147. 

operations,  and  the  plaintiff  did  tlao  hous creeping,  cooked  for  the  de- 
fendant's employes,  and  performed  all  the  other  duties  of  a  housewife. 
She  also  ascisted  in  couductins  the  farm.  In  1897  the  defendaiit  entered 
into  partnershipwith  one  Bricker,  in  the  business  of  'buying  and  selling 
horses  ani  mules.  Until  1901  the  plaintiff  remained  ui^^on  the  farm  aad 
continued  to  perform  the  duties  hereinbefore  detailed.  In  1901  the  plain- 
tiff, at  the  defendant's  request,  -./ent  to  Los  Angeles,  and  thereafter 
lived  with  defendant  at  hotels  or  in  apartments  in  San  Francisco  arjd  in 
Los  Angeles,  a&  directed  "by  defendant,  mitil  on  or  about  the  16th  day  of 
January,  1906.  During  this  time  she  did  all  that  --/as  required  of  her  by 
defendant  in  the  .vay  of  services  and  in  the  accumulation  of  property;  but 
after  the  year  1900  the  services  rendered  by  her  in  the  accumulation  of 
property  v/ere,  from  a  monetary  standpoint,  of  no  pecuixiary  value.  The 
services  so  rendered  by  ^-Irnntiff  v.-ere  rendered  by  her  solely  because  of 
the  relations  casting  bet-./een  her  aiid  the  defendant  as  found  by  the  court, 
and  not  otherv/ise. 

After  the  marriage  of  tlie  parties,  a  large  amount  of  property  v/as 
accumulated,  and  \/as  lost  in  several  ventures  through  no  fault  of  plain- 
tiff or  defendant.  In  the  year  1901,  the  defendant  v;as  practically  with- 
out any  i^roperty,  other  than  his  interest  in  the  land  fi.'st  above  mention- 
ed and  his  interest  in  the  partnership  of  Bricl-rer  &  Coats.  This  partner- 
ship interest  -./as  of  the  value  of  about  ^2,500,  and  \/as  acciwiulated  after 
the  said  marriage.  With  these  e::coptiQns,  all  of  the  property  o'.rned  by 
hin  at  the  time  of  the  annulment  of  the  marriage  t/as  acquired  svibsequent 
to  the  year  1900.  At  tlie  time  of  the  annulment  of  the  marriage,  to  vdt, 
on  the  16th  day  of  January,  1906,  the  defendant  aiid  Bricker  ov.ned  person- 
al property  to  the  valueof  Ol39,905.51.  jhe  interest  of  tlie  defendant. 
Coats,  therein  was  an  undivided  one-half .  amounting  tP  value  to  0697^2.65 
gatg~j7rop5T^ty  \/as  so  mvned  free  aaid  clear  of  incumbrance,  and  neither,  the 
Partnership  nor  Coats  v/as  the:i  indebted.  Subsequent  to  tlie  decree  of 
airvuimei'.t.  Coats  dpe\i^  from  the  partnarship  moneys  amOuirtl::'^  to  over_  • 
^^BBJOO^     The  defendaiit *s  iiiterest  in  the  remaining  -jro'iJerty  of  the  part- 
norship  is  of  the  value  of  057,557.50.  All  of  the  property  which  the  de- 
feiiaa^L-t  no\;  has,  a^d  all  of  the  moiiey  dra".^.-.  h^r   him  f ron  the  partiiership 
,  since  Jai.uary  16,  1906,  v/as  acquired  or  isthe  proceeds  and  accuj-nulations 
of  property  \;hich  was  acquired  durii'g  tlie  married  life  of  plair-tiff  a::d 
defendaiit.  There  is  a  further  findiiig  that  no  disposition  of  said  prop- 
erty, or  any  property,  \;aE  made  or  attempted  to  be  made  in  or  by  tlie  de- 
cree of  an::ulment,  and  that  no  question  concerning  the  same,  or  any  prop- 
erty, v/as  presented  by  the  pleadings  for  determination  in  said  ai-iulnei.t 
suit,  or  considered  therein.  The   plaintiff,  it  is  found,  has  not  re- 
ceived any  part  or  portion  of  the  said  property.  She  has  no  property  of 
her  ovm,  and  is  vathout  means. 

The  conclusion  of  lav/  dra^.ii  from  these  facts  is  that  the  plaintiff 
is  entitled  to' adjudgment  against  the  defenaa:'.t  in  tlie  sum  of  vXujOOO. 
"and  for  her  costs. 


(1)  i'assing,  for  the  moment,  the  consideration  of  certain  subsid- 
iary problems  v/hich  arise  on  the  particular  facts  found,  this  appeal 
presents  for  determination,  primarily,  the  question  v/hether  a  v/oman,  who 
has  in  good  faith  entered,  into  a  marriage  v;hich  raaj''  be  avoided  at  tlie 


148. 

insta-ice  of  the  other  party,   is  entitled,  upon  or  after  aiuiulment,   to  ai'-j' 
particijatio;!  in  the  property  •.mch  lias  beei:  accumulatec".  Jjy  the   efforts 
of  both  parties  during  the   e::iste::ce  of  the  supposed  marria^re,  a:id  -.•liile 
she  ill  good  faith  be  lievod  that   such  rriarriage  -.vas  valid.     The  nero  state- 
ment of  the  c^uestion  i.'ould  seeui  to  "oe  tiuxicieat  to  rec^r.ire  an  ans\/er  in 
the  affiiniative.     To  say  that  tl.s  ■  •o..''u.-,^i.  in  such  case,   evsu  though  sh3  ;".:.  7 
be  pemiiless  aoid  unahle  to  earn  a  livi-i^,   is  to  receive  nothing,  vhile  the 
oe^m  -./itli  -/hoin  she  lived  and  la-joie-l  in  t::. 3  belief    uiat  she  v/?,s  his  '.Ife, 
shall  tal-ze  and  hold  ijlaatever  he  ^nd  ihs  have  acc^uired,     ov.ld  "be  contra./ 
to  the  most  elernentai-y  conceptio:-:G  of  fairness  aix-  justice.     'Z^iL  raarzi^.:,^ 
\/ac  not  void  in  the  e;:treuie  sens3.     ilit-.vfce  of  Gregoxson,  115  xac.  60. 
Slie  defendant  liad  t'.ie  ri:;it  to  attac'-:  it,  and  to  have  it  annulled,  "out, 
in  the  absence  of  sxxh  attack,   it  i/as  good  as  a^'ainst.  everybody.     Ihircl 
parties  could  not  cuestion  its  validity  in  eiiy  •/£./,   and  even  the  husband 
himself  './as  bound  by  it,   u-itil  and  unless  he  undertoo'.::  to    set   it  aside  by 
means  of  an  action  for  annulment. 

The  argument  of  appellant  in  this  connection  is   that,  ihile  a  void- 
able marriage. is  valid,   uuilecs  annulled,   yet,  v/here  tlicre  has  been  a  de- 
cree of  annulment,  the  dectee  aeterinines  that  no  marriage  ever  eizisted, 
and  renders  it  void  ab  initio.     Accordingly,  upon  the  maring  of  t^e  decree, 
the  children  become  illegitiraate    (e:-:cept  for  statutory  provisions,   lilie 
section  84  of  our  Civil  Code),   and  property  rights  of    either  party,   in  z9 
far  as  they  depend  upon  marriage,  are  at  an  end.      Ziero  is  a^le  authority 
supporting  the  proposition  that  tl.e  effect  of  a  decree  of  nullity  is   to 
declare  that    Gie  marriage  vjas  void  from  the  beginning.     2  i-Telson,  Div.  £ 
Sep.  Sec.   565;   1  Bish.  Mar.,  Piv.  &.  Lep.  Lections   25S,   277,   1596;   26  Gyc. 
919,    920;    19  A  c";  L.   3nc.   L.   1220;  Hatter  of  Eiclilioff,    101   Cal  •   600,    56 
Pac.  11-   Chase  v.  Chase,   55  lie.  21.     Co,   too,   it  is  generally  held  that 
xAie'A  a  marriage   is  ann.ulled  property  rights  dependent  upon  the  e::istenoe 
of   the  marriage,    such  as  dower  and  curtesy,    ai^e  ter.uinated  and  annulled. 
19  A.  (i  E.  Enc.  L  1221;   Chase  v.  Chase,   supra;  Price  v.  Price,   12C-  IT.  Y. 
589,   27  n.  E.   Z80,   12  L.  H.  A.  559.     But  these  decisions,   and  others  cited 
by  the  appellant,    deal  v.lth  the  rights  of  one  of   the  parties  in  property 
o->med  by  the  other.     An  interest  in  such  property,  dependent  solely  upon 
marriage,  cannot  e::ist  after  en.  adjudication  that  tliere  has  been  no  m?r- 
riage.     If,   as  is   suggested  by  th^  appellant,    the  annuLnent  is  to  be  treat- 
ed as  analogous   to  a  rescission,   it  should,  properly  enough  be  accompanied 
by  a  restoration  to   the  parties  of  \,hat  they  respectively  lia.d  before  m^r- 
riage,  rnd  \/liat  tley  v.ould  liave  liad  in  the  absence   of  a  marriage. 

Here,  however,   the  question  is  a  difierent  one.     Zhe  controxreisy  is, 
not  over  the  propertj;-  o.rned  by  the  defeud-rrit  prior  to  marriage,   or  acquir- 
ed by  him  alone  thereafter,   but  has  to  do  -.it:!  the  acquisitions  of  t'.ie 
tv;o  parties  after  marriage,  and  before  camulment.      If  botli  Iiave  coiit:.ibut- 
ed  to  such  acquisitions,   each  has  an  interest     hicii  c^nd  not  e::ist  at  tl'.i 
tL^e  of   the  mariiage,     iTne  status  cuo  could  not  be  restoie".  upon- .aimuL.ient , 
"dthout  maln.ng  some  provision  for  thj3  eruitabls  division  ol    this  property. 
In  the  absence  of  fraud  or  other  ground  affecting  the  i  i^:kt  to   claim  re- 
lief,  there  can  be  no  good  leason  f  Oi   Soyi:rg  that  ei  filer  pai'ty  should,  by 
reason  of  the  anniilmant,   be  vested  v,i.th   title  to  all  of  tlTC  property  ac- 
quired during  the  3::istence  of  the  supposed  marriage. 


149. 

"A  void  marrio-se  ordinarily  confers  no  rights  upon  either  of   the 
parties   in  resi^^ect  to  the  property  of  the   other,   tvch  as  -.aduIcI  "be  con- 
ferred if  the  marriage  were  valid.     As   to  property  accunulated  during 
tie  existence  of  the  relation,  ho\;Bver,   quite  a  different  question  is 
presented."     IToto  to  Deeds  v.  Strode,    96  Am.  St.  Rep.  272.      Ihus,    in 
Fuller  V.   Puller.   ZZ  Kan.   582,   7  Pao.  241,    the  court  said  that,    "in  all 
judioiaJ.   separations   of  persons  who  have  lived  together  as  husbaiid  and 
wife,   a  fair  and  aquita'Dla  divisions   of  thj^ir  property  should  he  had." 
It  is  true   that  this   expression  vcs  not  nocossaxy  to  the  decision,  hut 
the  principle  declared  v/as  after.vai-ds  applied  "by  the  sane  court  in  Uern- 
er  V.  Uerner,    59  Kan,   o99,    55  Pac.   127,  41  L.  R    A.   £49,    68  An-  St.  P.ep. 
572.     In  that  case  the   trial  court,    in  rjinullin^  a  marriage  on  the  grouncL 
that  the  v/ife  had  a  foiner  hushand  living,  had  a-./arded  to  her  ono-half 
of  the  property  acciii-.iulated  through  the  joint  efforts  of  the  parties 
while  they  were  living    tojethcr  as  huchand  oxiC  wife.     The  judgment  vra.s 
affirmed  on  appeal.     A  similar  ruling  was  made  in  BuclcLey  v.  Bucl<loy,   50 
Tfesh.   215,    96Pac.  1079,   126  Aiii.  St.  Rep.    900,   v3iere,  upon  annulment   of 
a  marriage,    the  \7ife  was  av/arded  a  one-fourth  interest  in  t]-js  real  prop- 
erty of  the  hushaad.     In  To:ias,    too,   the  courts  liave,    in  several  cases, 
reached  similar  results,   Carroll  v.  Carroll,   20  Tex.  752;  Ilorgan  v.  Ilor- 
gaa,    1   Te::.   Civ.  App.  515,   21  S.  W.  154;  Lawson  v.   Lav/con,   50  Te::".   Civ  = 
App.   45,    69  S.  V/.   245;   Barliley  v.  Dutikc,    99  a?ex.   150,    87  S.  77.   1147;   F. 
¥.  &  R.    (J.  R.    Co.  V.  Robertson   (Te:c.   Civ.  App.)  121  S,  T7.   202. 

The  decision  of  this  court  in  Jacteon  v.  Jaclrson,    94  Cal.  445,  462, 
465,  29Pac.   957,   -.vhile  not  perhaps  a  dii-ect  authority  on  the  point  under 
discussion,  has  persuasive  wei;Jat   in  support  of  the  viev;s  slread.y  ex- 
pressed.    There   the  couirt,    in  annulling  a  i-.iarriage  voidaljle  under  section 
51  of  t:-:e  Civil  Code,    allotted  to  the  hushaud   one-half  of  property'  v/hich 
he  had  theretofore  deeded  to  the  wife  under  conditions  entitling  him  to 
disaffirm  the   transfer  for  fraud.      Tlie  i>ro[)?erty  in  question  vra.s  apparent- 
ly acquired  after  marriage,  and  is  referred- to   in  the   opinion  of  the  court 
as  co!:ziunity  property.     Tlie  appeal  vas  by  tloe  wife,  and  she  did  not,   so 
far  as  is  chovm,   question  tiie  propriety  of  nal-cing  a  division,    in  some  v/ay, 
of  cuch  property.     But  in  the  concurring  o:oinion  of  Justice  Harrison,    in 
which  Justice  Paterson  concurred,    this  language   is   used:      "It  may  "bo  con- 
ceded that  the  parties   to  this  action  entered  into   the  contract  of  iiiar- 
riage  under  such  circumstances   that   it  was  valid   to  all  intents  and.  pur- 
poses until  annulled  by  decree     of  the  coui't;  but  the  fact   tlrnt   the  de- 
fendant had  at  that  date  a  fonrer  v/ife  liviag,   from  viaom  he  had.  not  been 
divorced,   gave  to  the  plaintiff  the  ri-^t  to  jiave  tbe  i.-arriage   annulled 
upon  the  discovery  of  such  fact.     Civ.   Code  Sec.   82,    subd.   2.     Upon  its 
dissolution,   there  would  arise   tlie  sane  equitable  grounds  for  an  equal 
division  of  the  property  that  liad  been  acquired  by  the  parties  during 
the  existence  of  the  relation  of  husband  and  v/ife  as  \;ould  exist  upon 
dissolution  of  any  valid  contract  of  marriage  for  a  cause  other  than 
adultery  or  extrev.io  cruelty  " 

We   thinl:  the  ecntonc-e  last  quoted,   although  not  binding  as  a  declara- 
tion of  a  majority  of  the  justices,   lays  do\^n  the  just  rule   to  be  applied 
in  cases  of  this  character.     Even  though  it  may  be  true  that,   strictly 
.  speaking,    there  is  no  ■'corxiunity  property''  vhere  there  lias  not  been  a 
valid  marriage    (Cliapi.:an  v-   Giiapman,   11  Tex-    Civ.  App.  592,    52  S.  U.   564; 
see  68  Am.  St,  Rep.  p.   576,   note),   th£  courts  may  well,    in  dividing  ea.ins 


150, 

rnado  "by  the   joint  efforts  of  a  aan  aiid  a  -TOman  liviiig  tosether  under  a 
voidable  i.iarric^so  -.vhich  is  sutsequer-tly  annulled,   apoply,   "by  aiialo^jr, 
the  rules  v/hicli  \/ould  or-.-ain  \.'ith  re:;aid   to  coixiunity  property'-,  v;here 
a  valid  marriaga  is   tG-r-,.iaated  by  dcatli  of  the  husband  or  by  divorce. 
The  aiJportioiinent   of  s\:o:a  property  bet\raen  the  parties   is  not  provided 
by  any  £tati;.te.     It  nuct   'ilneroforo  be  nado  on  equitable  principles. 
In  the  absence  of  special  ciL'Cui-.iEtanceB,   such  as  ni^it  arise  througli 
intervcnii:i£;"  ciwiES  of  third  persons,   -..'e  can  conceive  of  no  noro  ec^uit- 
able  basis  cf  ayportioninent  than  an  equal  division.     Until   the  rnakin^ 
of  the  cnnulnent  decree,,    the  i.iarriago  \v£-e  valid,   and  the  property'-  in 
cuestion  v/c-E   inpressed  \dth  the  coa-.ranity  ch2J."actcr.     Upon  aimulnent, 
sv.ch  property,  even  though  it  be  no  longer  corxiunity  property,   should 
bo  divided  as  conmunity  property  v/'ould  liavG  been  upon  a  dissolution  of 
the  narriage  by  divorce  or  the  death  of  the  husband. 

If  those  viev/s  be  sound,    it   is  entirely  iKmaterial   tMt  the  bul'.: 
of   the  proper t-y  v/ac  acquired  bet-.voen    Qie  years  1900  and  1906,    and  that 
the  plaintiff's  servicer   in  its  accumulation  v;ere   "of  no  monetary  value." 
She  is  not  suintJ  to  recover  for   services  rendered  under  a  contract  for 
labor,   nor  to  establish,  tla  vs.lue  of  her  interest  in  a  bvisinoss  partner- 
ship.    V.'hat  clie  did,   she  did  as  a  vife,    aad  her  share  of  the  joint  ac- 
cw.iulati ons  must  be  measur-ed  by  vfloat  a  v/ife  would  receive  out  of  corxiun- 
ity X'roperty  on  the  termination  of  the  marriage.     "IHie   lav;  -all  not  in- 
quire *  *  *  ^ihetZ^-or  tlis  acquisition  was  by  tl3   joint  efloi  ts  of  the  hus- 
band and  v;ife,    or  atte^Tpt  to  adjust  their  respective  rijlits   in  proportion 
to   the  pjnount  each  conrributed  thereto,      Eie  1'j.vr  \rill  not  concern  itself 
vdth  sTTCh  an  inqiiiry,  but  vdll  leave  tis  parties  to  share   in  the  proper tj' 
in  the  same  propor'^ion  as   thxiugh  the  marriage  contract  \rcz  A/hat    tlie  \fife 
had  every  reason  to  believe  it  to  "be,    i.   e.,  a  valid  marriage.''     F,  V,  tz 
K.  G-"  R-   ^0     v,  nobertpon,   supra.     If  then,    tlE  facts  \.ould  have  justi- 
fied an  allotment   to   ti:. o  "./ife  of  one-half  of  tlx-.  property  acquired  by 
the  parties,   there  can  be  no  complaint  oi  t>£  allov/ance  of  ','10,000,  which 
Yvas  much  less  then  one-lx^lf. 

(2)   On  the   question  of  plaintiff's  yood  faith,    the  appellant  urges 
that  she  could  not  have  been  in  ignorance  of  the  fact  of  her  physical 
incapacity  f cjr  18  yeais.     But  any  inquiry  in  this  respect   is  foreclosed 
by  the  coia-t's  finding;   '.hich  ir   not  open  to  attaclc  on  this  appeal. 

(5)  Finally,   it  is  arg*ucd  that   tiic  plaintiff's  property  ri:ghts,    if 
she  had  any,  might  have  been  adjudicated  in  tli-  annulment  suit,   and  that 
she  is  estopped  by  tlie   judgrBnt   in  thr^t  suit  from  litigating  the  claim 
here  presented.     A  judgment   is  conclusive     only  upon  tls   issues  presented 
by  tl:ie  pleadings    (Freeman;   J\idgments,  See.    249).,   'srosl.  actually  adjudicated. 
Baiilc  of  Visalia  v.  Smith.,   l-i-6  Gal.   D98,   81  Pac.   od-E.      Saus   it  has  been 
held  in  this  court  tliat,    if  in  an  action  for  divorce  tl£   question  of  the 
disposition  of  comi-.iunity  property  is  not  presented  by  tlie  pleadings   or 
determined  by  the  decree,    the  pai'ties  ai*e  not  precluf-ed  from  subsequently 
asserting  theii.-  ri.-J-its  ^ath  respect   to  such  property.     De   Godey  v.  De 
G-odQy,'S9  Gal,    157;   Biggi  v     Biggi,    98  Cal.   56,'o2Pac.   COS,    25  Aiu.   St, 
P.ep.   K-1;   llirschner  v.  Lietrich,    110  Cal.   502,   42  P?jC.  1064.     For  lite 
reasons,    the  juc.g!aont  annulling  the  i,iarriage  ctnnot  estop  plaintiff  from 
nov/  litigating  her  property  claims.      Ztg  covrt  belo\/  found  that   the  ques- 
tion of  property  lijits  -/t-s  not  presented  by  the  pleacMngs  in  tire  annul- 


J 


^-^-'S-^^^'' 


--i^yyf''^^ . 


Mb~r, 


f_  / 


^.^1>^!^CA^      __ 


f  .^ 


•  ^.w^.;.^^^   /^^  x'^ir'' 


•^     ^4,-t-<--^t''^^-<'7  /y 


151, 

nent  sruit,    oxxC  tliat  no  disposition  of  property  v;2.s  i.Tac-G  or  attonptod  to 
be  iiade  117  the  Jud^ine-it    in  tiiat  suit.      Tliis  findias  is  conducive  on  tlie 
proEcnt  appG.u . 

(4)   In  this  oomijction,   thjo   a'.^pellant  relies  on  avcrnonto  of  his 
ans\/er  chovii^-  that,    ir<.  :..-iz\.'ct xv^  tho  cor.iplciut   in  the  ror;.ior  action,    tl-j3 
plaintiff    ( def oada^rt   in   tiiat  action)  •./aived  alinony.      If  it  were  conceded 
that  this  v/ould  afr^ect   t;?.e  subject  of  the  present  action,   tho  alleged 
v;aiver  canno':  bo  cnD.j-,T.do::od.     E.ci-e   is  no  findt^-  -..-ith  respect   to   it. 
!IIho  judgi-.r,nt   oe.-.nij  n-.r:?ported  "by  the  findings  majde,   it  i.mst  be  presu-iod, 
in  the  absftHCO  of  a  contrary  sha.;ini'  in  tic   record,   that  there  ^.■as  no 
evidence  which  ^.'c■uld  have  sustained  a  finding  in  defendant 'c  favor  on 
this   isi^.ie.     Klcir.eJ.Esa-v.  Henry;   84-  Cal,   lOd-,    25  Pac .  1098;  Vxm'SXOM  v . 
Gohranr3cn,    83  Cal.  45'J,    26  Pac.   504;   r.cberts  v.  Hall,   147  Cal.  454,    62 
Pac.   66. 

Tlie  jud^T.ient  is    affirr.cd.  y^-,,,,^  V^\ 

17e  concur:     Angollctti,   J.;   Cliav;     J.;  Lorigan,   J.;  Kensliav/,    J.; 
Ilelvin,   J. 

On  Petition  foa.-  Reheaiang. 


PER  CURIAil.      (5)    The   petition  foi    rehear in,^'  is  denied.      To  prevent 
Biis under staiiding,    there  should,  hov;ever,  be  soris  nodification  of  the 
opinion  filed.     ',7o  do  no'.;  3iold   tl:iat  a  v/ov.-.an  occupyii.\':;  the  position  of 
tha  plaintiff  here  is,,   under  any  and  all  conditions,_and  as  a  aatter  of 
strict   lep:al  ri.jat.    GrtJt,iGC  to   one-T!aI?~o?' the 'proper  ty  r.n.ruirp.cl   during  --11"-^^  p_ 
tl:a  e:cistGnce   of  the  b-jpposed  r.arriar-r'6 .      TLie  airiOunt  to  be  allotted  to  her         ^ 
J.S   to  be  dotcrnined  by  the  e::ercise  of   £ie  so'jnd  discretion  of  the  trial 
coui-t^    Under  the  clrounf.  tances  here  shov;n,    it  cannot  be  said  that  the 
court  belov;  abused  its  dj.soretion  in  av/ardin^  vlO,000  to   the  plaintiff. 


15S. 


liS/IS  S.  HU^On,  BespondGiit ,   v.  LOPIilA  J.  lljaPE2E, 
Appallant . 

(59  XTash.   105,   109  P-C05). 
X910. 

Appeal  fror.i  a  judsr.-.clit  of  tlae  superior  court  far  Ki'Jg  cotmty.   Can- 
field,   J.,  entered  Juno  24,   1S09,  tipon  findings  in  favor  of  tha jplaintifi 
in  an  actioa  to  guiet  title,  after  &_trial  on  the,jaer-it^» — A.ffijiacd< 

IJorris,   J. — ^Action  to  quiet  title,  decree  for  plaintiff,  and  de- 
fendant appeals.     Respondent  allesed  o\mership  of  lot  12,  lilock  D7.,  Heirs 
of  Sarah  A»  Bell's  sccongraddiLlon  to  Sea  I  Liu,  l?y~vtrtn:e~of  ng-snio~cron= 

_veyances._ancrpr^sQ.  toTiave  his  title  quieted  as  against  appellanr.     The 
aas'wir  admitted  the  conveyances  pleaded  lay  respondent,  denied  liisa.vaer- 

jship.  aM.  set  forth  an  ov~nersha3p  in  appellaat~or'~aana2Ldivic[ed  one-halT 
interest. 

TtB.  only  record  "before  us  consists  oi  the  pleadings,   findings  of 
fact,  conclusions  of  lav;,  and  decree,  and  hence  tl:e  only  question  to  "be 
considered  on  the  appeal  is  v/hether  tie  findings  support  tlie  decree.     "Ihe 
findings  recite  that,   on  January  15,   1669;   the  appellant  -./as  tlie  vife  of 
Jacob  Scoland,  an(?.  that  on  said  day  tlio  lot   in  suit  '..'as  conveyed  to   Jacot 
Scolaad;    that  on  May  20,   1821,   apfpellant  com-.enced  an  action  a~ainEt  her 
then  husbcaid,   Jacob  Scoland,  praying  f  cr  a  divorce;    Uict  the  husband  ap- 
peai-ed  in  such  action  and  on  Septer.Tber  5  a  decree  v/as  entered  av/arding  a 
decree  to  ai:)pellaa.t;   that  in  tho  corrplaint  in  the  di/orce  action  appel- 
lant alleged  the  corxiunity  property  of  the  parties   to  be  a  lot  on  the 
northwest  corner     of  Lenora  and  Tenth  streets    (-^/hich  is  tlB  location  of 
tl:e  property  in  suit),  and  a  property  :iio\ai  as  1415  Eighth  street;    that 
in  addition  to   tho  personal  property  described  in  the  cor.iplaint,   the 
court  in  the  divorce  action  loruil  tl"iat  the  Ziusbanc".  lard  an"  interest  in  a 
tovboat,    aif.  allotted  to   the  ^7ife   tlio  property-  'oiovrn  as  141S  Eighth  street 
as  her  separate  property  f  cr  her  support  and  tho  education  of  the  child- 
ren of  the  parties,   aad  fourd  a  lot  described  as  lot  6     block  49,  second 
addition  of  tho  Heirs  of  SaxaJi  k.  Bell,  "./as  ths  separate  property  of  the 
wife;    that  the  wife  was  also  allotted  the  household  furniture,   and  nade 
other  allo'.vances ;   that  said  decree  v;as  appealed  fron  and  v.'as  on  appeal 
sustained  by  t:ii£  court;    that  said  decfee  v/as  appealed  fron  and  vjas  on 
appeal  sustained  by  this  covit;    that  tliere  is  no  mention  nade  in  the  de- 
cree granted  the  v/ife  of  lot  12,  bloclr  37,   second  ac.dition  of  t3ie  Heirs 
of  Sarah  A.  Bell,   nor  is  there  any  uentiou  ;jade  of  the  personal  propert3'- 
referied  to  in  the  findings;   that  on  October  15,   1891.   Jaclib  Scoland  axid 
his  vife  Sophia  executed  a  mortgage  on  lot  12.  -\/hich  v/as  sribseciUeatly 
satisfied;    that  on  January  19,   1692,   the  same  parties  e::ecuted  a  second 
mortgage   to  tSae  same  mortg-agee,  upon  lot  12,  \.'hich  \;as  also   thereafter 
satisfied;    that  on  October  15,   1892,   Jacob  Scoland  alone  e:cecuted  a  mort- 
gage to  tho  saias  Anna  0.  Ilillcr,    on  lot  12,  v>3aioh  -./as    thereafter  duly 
satisfied,  and  that  on  October  18.   1695,    Jacob  Scoland,   describing  him- 
self as  an  urunarried  nan,    conveyed  lot  12  to  Anna  0.  Ililler.     Sie  court 
finds  further,    tliat   there   iL  no  estoppel  established,   nor  is  a  plea  of 
the  statute  of  Ihiutations  sustained,  nor  is   tlaere  evidence  sho\-lng  oustc" 
nor  demand  on  the  part  of  respom^.ent ,  for  any  money  e::pended  by  liim  on 


■>  -    ■:>•: 


H  :   *  ■.  . 


■  .7. ). 


■■■■i    ^  :  :. 

. ...     J. 


•J  .v^.uo.-.   :.^f; ,•  .:^'...;u::i'  ' 


.-.'J.' 


M--.r 


153. 

account  of  lot  IZ.     Thon  follows  a  couclusiou  of  Irw,  :in  ^.■hich  the  cour"-- 
sets  forth  its  1)01101   thct  in  fiie  divorce  pctiou  tie   trir.l  court  consid- 
ered that  the  property  a-Jardod  to  the  -./ife  \td.s  "u  equitable  distribution 
to  her  from  the  coiTiirrunity  property,  and  that  the  property  not  givou  to 
the  -wife  -JS-s  intended  to  remain  the   separate  property  of  tire  husband. 
Ihe  court  then  furtli&r  concluieB,   tliat  HiQ  respondent   ic  entitled  to  a 
decree  quieting  his   title  against  any  claiin  or   interest  of  appellant, 
aiid  orders  a  decree  accordingly. 

Hie  appellant  nov.'  contends  that    these  findings  do  not  support  the 
conclusions  nor  the  decree  based  thereon,   for  flie  reason  that  nowhere  in 
the  findincc  is  there  any  statement  of  fact  juEtiTyini;  tic  court  in  con- 
cluding that  respondent  -./as  tlie  o^.•ner  of  lot  12,     It  is  apparent  from  a 
mere  inspection,  of  the  findings  as  "./c  liave  recited  them  that  they  are  e::- 
tremely  meager  and  incomplete.     The  court  belov/  eviden.tly  had  the  entire 
record  in  "fiie  divorce  proceedings  before  him,  aiid  in  the  present  case, 
instead  of  setting  forth  tlE  findings  of  fact,  conclusions  of  law,   and 
decree  in  the  divorce  case,   as  liis  finding  of  fact,  and  hasiag  thereon 
his  decree,  the  court  gives  by  './ay  of  findings  of  fact  in  this  case  a 
summary  of  his    interpretation  of  \ha.t  ic  establisl-Bd  and  -./hat   is   not  es- 
tablished by  the  record  in  the  divorce  action.     The  findings  being  mani- 
festly defective  and  incomplete,    it  does  not  follow  that   tlie  decree  must 
be  reversed.     Ratlisr  does   it  folio-.?,   as  we  liave  uniformly  held,    that  in 
the  absence  of  the  evidence  upon   .hich  t::ie  court  belo'..' based  it  findings, 
v/e  will  presume  the  evidence  was  sufficient   to  support  the  decree.     Ihe 
only  way  to  overcome  this  presumption  is   to  bring  do'  evidence  as  ■Well 
as  the   findirgs  before  us.     Snos  v.  \7ilco:r,    G  Viash.  44,    28  Pac.   564; 
State  e:i  rel.   Orr  v.  Favrcett,   17  T/ash.  188,  49  lac.  £46;    Gay  v.  Haver- 
male,   SO  Wash.   622,   71  Pac.  190;    Gould  v.  Austin,  52  Wash.  457,   100  Pac. 
1029.     This  disposes  of  the  stages ted  error, 

T7q  have,  ho^/ever,   felt  at  liberty  to  e::amine  the  record  in  fiie  di- 
vorce case  of  Ecola:^!  v.  Scoland,  4  Ti'ash.  118,    29  Tac   9G0,    in  view  of 
tie  opinion  tlereiu  eccpressed  that   -'the  division  of  tlEir  property  was 
not  unfair,"  for  the  purpose  of  ascertaining  what    float  division  '..-as,  and 
thus  satisfy  our  minds  as   to   ttie  equity  of  the  decree  of   flie  court  belo-v/ 
and,   in  view  of  t]:e  fact  tlm.t  in  the  findings  before  us  tlE  court  below, 
having  before  it   tlx;   same  record  as  induced  tlus  court  on  the  Scoland 
appeal  to  say  13ig  division  of  tlB  property  -.-tis  fair,  has  not  attempted 
to  malce  any  find.ing  of  tlie  disposition  of  tliB  property  other  than  to  le- 
fer  to  tliat  ■.;hioh  v/as  a\.-arded  to  tlie  appellant.     By  tie  pleadings   in  the 
Scoland  case  tie.  follov/ing  property  -..'as  sibinitted  to  the  jurisdiction  of 
tlie  court:     House  and  lot  described  as  141S  Highth  street,  valued  at 
(^5,000;    the  north-,>BSt  corner  of  Lenora  and  Tenth  street,  -..hich  i:.  tie 
lot  12  in  question  in  tide   action,  valued  at  02,000,  upom    /hich  tiere  was 
a  mortgage  of  §1, 680;   lot- 6,   bloclc  49,  2d  Add-  Eeirs  of  Sarah  i..  Bell,  at 
11th  and  Olive,  valued  at  ^2,000;   anf.  the  follo\/ing  personal  praperty: 
A  one-third  interest  on  the  tug  Rainioi ,  valued  at  ^o,500,   and  stock  in 
the  Seattle  Drydock  £:  Shipbuildizg  Company  of  tlie  par  value  of  $1,800, 
All  tie   above  property  -..-as  conceded  to  be  coimnuniti-  property,  escept  lot 
6,  which  the  -..^ife  claimed  the  husbsiid  had  given  to  her  as  her  separate 
property  about  tvo  years  prior.     The  prayer  of  tlia  -..-ife's  complaint  was, 
"Zliat    Sic  coxn-t  -.all  award  to  her  out  of  the  coonunity  property'  her  fair 
and  equitable  portion  tI:ereof.'     Hie  findings  of  fact  -u-ere   in  favor  of 


'-,<#i«>t^<^f-V     ^^  y'. 


^^ 


-  >a-<.-^;?» 


V 


^^^^<-«-^'/<««f  ■»  *  ^^^£> 


.^^^i^^ 


J^ 


-      -^!k-^>/^ ^€P  ^yi^t^     <;^-*-"->.^-.^^— _ 


154. 

tlie  \7ife,  lioldiag  lot  6  as  her  cepavate  propert7  zyiC  siven  to  her  as  ev!"/.. 
"by  I^er  liusbaud.     "Zxi  other  property/-  -/as  found  to  "be  the  coianunit:-  pi-op- 
eity  of  the  pajrtiss,  axi.  tlio  values  fixed  as  aljOve  ^iven.      Saa  com  t  thj:-" 
iOU.Q  its  decree,   liased  on  its  conclusions  of  lav/  ./hach  folio-Ted  the  ford- 
ing, and  in  tHie  deciee  tlie  court  3: anted  the  ^/ife's  prater;  aad  set  ape-i^'t 
to  her  \ih3.t  it  a:\jud3ed  to  "be  lier  ecuitaTale  portion  of  the  property,  viz., 
lot  6,   "block  49,    the  house  and  lot  described  as  141L   8th  sti-oc     :.ll  tho 
hoiisehold  furnitui-e,   and  $250  attorney's  fee.     aSius  it  -'ill  be  tecu  tliitc 
tlio  values  arra-rdad  to  the  v^ife  s^ounted  to  $7,230.   not  includin-;  the  furn- 
iture upon  ".hich  no  valuation    /as  placed-      TbQ  valu3  of  tie   rcinc-inin^; 
property,   less  tl33  niortsa&e  on  lot  12,  ^'as  §6,520.     It  is  clear  from  ell 
tlieso  cii-cujaEtanc2E   tliat  the  purpose  tjic  intent  of   flie  deciee  '"as   to  picl: 
out  end  set  apart  to   tlie  '>/ife  her  e^uitcblc  share  of  ths  property,   leav- 
ing tiE  remainder  not  thus   incluf.ed,  all  of  v/Mch  vas  personal  pi  op  or  ty 
G::cept  lot  12   (the  title  to  '/hich  -.-as   in  the  husband's  name),  as  the  hus- 
band's share  •^   the  piop-ity.     uijais  was  avitLoia,l/l„  T7hat   1»..i&  cou_  .  ..ad  in 
mind  v/hon  ii,  usee,  this  lan^oia^e  in  its  opinion-,   "the  division  of  the 
property  was  not  unfair.'* 

It,   therefore,   appeal's  to  us   that  the  conclusion  reeLched  by   c'si 
•ui  !:  below  './as  an  ecui table  one.     Soma  stress  is  laid  by  appellant  on 
tlie  fact  tiat,   after  tlie  divorce,   she  joined  in  the  first  t'O  mortjages, 
and  it  is  argued  that  this  is  evidence  of  the  fact  tliat  she  ras  then  re- 
garded as  having  an  interest  in  lot  12.     Sie  '^^.irorce  \'aE  granted  Septem- 
ber 5,  1891,  and  an  ajfpeal  taJr3n  to  this  coc;  :,     'Jl:£.t  appeal  v/as  not  de- 
cided \mtil  April  7,   1892.     In  the   intsriii  the  inortsages  dated  October 
15,  1891,   ant'.  Januai^  19,   1892,  Iz^  been  given.     It  is  clear  that,  until 
the  decision  of  the  appeal,   the  parties  could  not  kno-'  vhat  their  prop- 
erty rights  v/ould  be,   and  hence  the  mortja^-ae  inisijit  -(/ell  have  insisted 
tliat  both  join  in  tlie  execution  of  the  uiorts-a^'es.     It  vill  be  noted  that, 
when  tlTs   third  mortgE-ge  \ras  :^ven  to  the  saine  uort:;a3,'eei    i'^i  Ostober,   1892. 
after  the  decision  of  the  divorce  appeal,   the  husband  alone  ei^iecuted  it, 
as  he  did  the  deed  in  October,   189Z:;    thus  evidencing  tl'B  fact  tl^at,  after 
the  decision  here,   the  husband  at  least  claimed  lot  12  as  his  o\m.      oto 
our  mind  this   is  a  strong  cr_cur.Etoii.ce  in  favor  of  the  respondent,,  and 
not  a  supporting  element   in  the  contention  of  appellant.     These  consider- 
ations lead  us   to  an  affirmance  of  the  judgi.Tsnt ,   and  it  is  so  ordered. 

Rudkin,  C»  J.,  Gose,  and  Cliach/ick,  JJ.,  concur,      v^o  ^^-      P  \  . 


155. 

TABLER  V.  i-EySEIlL  et  al.      (Civ.   266) 

(4  Cal.  A.  671,   1907) 

Court  of  Appeal,   Hiird' District,   California.     Bee.  51,    1906. 
Oa  Eehearingi   Jan..  50,    1907. 

Chipman,  P.  J.  Action  to  quiet  title  to  QeFta-ip  ipnd  in  Fresno 
oouaty. 

The  cause  was  tried  by  the  court  vathout  a  jury  end  defendant  v/ili 
Peverill  had  judgment   that  he  is  the  ovmbr  in  fee  of   the  lanfi.  suhjact^to 
the  administratTon  of  Qie  estate  of  Christopher  PeveriJJ...,_jigceaEed.^ 
J:'laintif?"  appeals  from  the  judgitient,  and  fro./;  the  order  denying  his 
motion  for  a  new  trial.     Prior  to   the  filing  of  the  conplaint   (which  was 
A'oguGt  25,   1905),  defendant  Ilarths.  J.,  vddow  of  said  deceased,   on  April 
28,  1905,  conveyed  all  her  interest  in  the  land  to  defendant  V/ill  Peverill, 
as  did  also  defendants  Hary  H.   and  George  A.,   children  of  deceased,    on 
April  29,    1S03.     The  default  of  llartha  J.  was  duly  entered,   and  Llary  M. 
anf!   George  A.  disclaimed  having  aiiy  interest  in  the  property.     Defendant 
'.7ill  Peverill  alone  anE\/erec.  to   uie  complaint. 

The  complaint  is  in  the  foi-m  usual  in  actions   to  quiet   title,      o^ie 
ans\7er  and  cross-complaint  of  d3fenda:it  V/ill  Peverill  denies  plaintiff's 
title  and  alleges   title  in  himself  subject  to  ad-i^inistration  of  the 
estate  of  Peverill,  deceased.     In  his  cross-complaint  asking  that  his 
title  he  quieted  as  against  plaintiff,  defendant  alleges  that  on  April 
16,  1892,   one  Charles  H.  Hohinson  '/as  the  arner  in  fee  of   tlie  property, 
and  that  on  that  day  ho  and  his  v/ife,  Leouoi-a  L.,  conveyed  the  sajne  to 
Christopher  Peverill,     .ho    thereupon  beca,.:!e  and  re.uained  t]TB'  o  ner  there- 
of until  I.Iay  20,   1900,   on  vhich  day  he  died  intestate,   leaving  said  prop- 
erty to  his  heirs  at  lav;,    the  said  defenc'-anti..     Plaintiffs  aiis-./er  to 
the  croEs-coraplaiut  deniss   tlie  alleged   title  of  CSiristopher  Peverill   ond 
sets  up  title  in  plaintiff,    claiming  that  said  Robinson  agreed  to  sell 
said  property  to  Christopher  Peverill,   on  Jtrch  15,    1688;    that    on  Kovoia- 
bar  20,    1890,    said  ieverill   conveyed  his  intorett  to  one  Coulthard;  who, 
on  llarch  51,   1692,   conveyed  said  property  to  Clara  £.  Peverill,   through 
v.hon  by  mesne  conveyances  the  property  ..'as  conveyed  to  plcintiff ;   tliat 
from  liarcli  51,    1092,    said  Clara  Peverill  and  her  grantees,  and  succssTors 
in  interest  a:j.d  plaintiff  herein',   "havo  b^v^n  openly,  notoriously,   contin- 
uously, uninterruptedly,  peaceaMy  snd  adversely  to  defendant  V/ill 
Peverill,  and  to  his  grontorE  aa?.  predecessor-s  in  interest  and  to  -11  the 
\/orld,   in  the  possession  of  and  seized  of  said  preniscs  under  a  claim  of 
right  aiid   title   Cere  in   ?::£-.   thereto,  and  as   zlie  ovaier  in  fee."     Sections 
51G  and  519  of  tlie  Code  of  Civil  Procedure  are  pleaded  in  bar  of  the 
cross-complaint.     'Ihe  otcvtute  of   lii.dtations,  however,   is  not  urged  in 
the  brief  of  plaintiff  end  vlli  not  be  furtlier  noticed. 

'^Q  court  found,  aiid  the  fiixi.ings  are  not  challenged,  tliat  Robinson 
conveyed  the  pro.^orty  as  sllege^-^'^''  naffl-.ir.o-nt •  th.'^.t  Christopher, j:3y_erj.  11 
died  intestate  Hay  50,    1900.  leavm^.-  as  heirs  at  la;:  the  persons  above 


156. 

named  as   such;    that  Llartlia,  Mary  Minei^a  and  George  teverill   conveyed  to 
dTSTendgirtr-as  allgggdr; — ?lTrtm-Tf3r^as¥ip:eS:"a'G  error    Qie  Tnsuf flciency  of 
tlie  evidence   to  justify  the  findings  followin;^-      '^^at  defendant  V/ill 
JPevcrill   is  the  o-./ner  of   the  land  subject   to  administration  of  said 
estate;    that  plaintiff  has  not,   nor  have  his  grantors,  "been  openly, 
notoriously,    etc.,    in  adverse  possession  of  said  pre.aiG3t,   and  that  plain- 
tiif  is  not  the  ov/ner  thereof.     It  was   stipulated  tliat   Charles  H.  Robin- 
son is   the  corni-.ion  source  of  title   of  plaintiff  and  defendant. 

An  abstract  of  title  v/as  asreod  upon  as  including  all  recoids  re- 
lating to   the   title  e::cept  a  dc-ed  fro/.:  J,  P-    Go'^.tlery  to  plaintiff.     This 
abstract   sliov/s  the    follov;ing:      (1)  Lond  for  deed  fron  Robinson  to  Christ- 
opher Peverill,   dated  Llarch  15,    1888=      (2)   Cuitclaim  deed  fra.i  Christ- 
ophe:-  Peverill   to  G.   Coulthard,   dated  ITovaaber  20,   1890.      (C)   Quitclairri 
deed  from  Coulthard,    to   Glaia  G.  Peverill    (divorced  v/ife  of  Christopher 
and  nother  of  Mary  Minerva  auc.  Geoi-ge),  dated  Lfercli  51,  1632.      (4)  Robin- 
son and  v;ife   to  Christopher  Peverill,   by  grant,    bargain,  and  sale  6.eetf 
e^ted.  Aprin  16,   18S2.      (5)   Grent,   bargain,  and  sale  deed  from  Clara  S. 
Peverill  to  California  Savings  £;  Loan  Society,  dated  May  IS,    1899.      (6) 
Qrsnt,  bargain,   and   sale  deed  of  California  Savings  £:  Loan  Society  to 
J,  Po  Cov-dery,   dated  May  14,    190S.      (7)   Cov.t'.ery,   by  graiit,  bargain,    aiid 
sale  deed  to  plaintiff,,    exited  June  15;    190£.     Hiere  vras  introduced  by 
plaintiff,  as  bearing  upon  the  issues,    tlae  judgment  roll  filed  in  the 
cleric's  office  of  San  Benito  county,    in   the  action  entitled  "Clara  S. 
Peverill  v.   Christopher  Peverill,"  for  divorce.     Tlie  juo^gment  shov;ed   that 
the  verified  cooplaint  vas  filed  February  7,    16S6,   in  San  Benito  coiuity, 
in  -..hich  plaintifi   averred  tliat   she  had  for  -four  months  last  past  been  a 
resident  of   said  covnty,    tliat  doionda:it  hac.  deserted  her  "from  the  2d  day 
of  February,   1895;    th^.t  the  isiue  of    uie   said  narriage  are;  Llary  M.  Pev- 
erill,  aged  16  years:     /illiarn  G.  Peverill,   aged  15,  years;    George  A.  Pev- 
erill, aged  14  years;-'     tliat  a  decree  '.vas  gianted  plaintiff  in  the  action 
as  prayed  for  on  the  ground  of  desertion;   v/nich  the  decree  adjudged  tooic 
place  February'  2,    1895,    end   the  custody  of  the  children  given  her;    the 
decree  ivas  granted  liarch  25,    1896.     ITo  reference  was  r.iade   to   say  property 
in  the  complaint. 

In  his  ans'./er  £::i<:\  cross-coi:Vlaint   the  defendant  in  the  divorce 
action  set  fort".--  certain  personal  property,    and  also  the  land  in  Question 
claiming  that  all  of  the  property  was  cora.iunity  property.     The  ansv'er  to 
the  cross-co-iplaint  denied  that  "the  real  estate  set  forth  and  described 
in  defendant *£  cross-complaint  is  nov  the  co.'.raunity  property  of  said 
plaintiff  and  deiends'nt,  but  alleges   tlie  fact   to  be  that    the   said  real 
estate  and  the  viiole  thereof   is,  and  for  rreny  months  past  has  been,    the 
separate  property  of  said  plaintiff  herein,   aid  that  said  defendant  has 
no  interest,*o\/n3:ship  or  title    thereto."     The   dscree  adjudged  "tliat ^tlis 
plaintifr  be  and   she  is  hereby  a-^./a-ded  the  corxiunity  property  of  said 
parties  consisting  of  household  anc.  ld.fcche:i  fur-niture  ^nd  farming  tools 
aiid  implerasnts,"  being  all  the  personal  property  ;nentioned  in  the  crosc- 
co -plaint  exept  one  hoxse,   o-ne  mule,   ane  set  double  harness,   one  cart 
and  soac  :,.oulti-y.     Of  t:j.s   la/cter  and  tlie  real  estate,  no  disposition 
\i:.i  aate  in  the   decree.      It  does  not  appear  viien  Cliristopher  married 
Ifertha,   after  his   dovorco,   b-at  it  does  ap.-ear  tliat   she  is  his  s-n-viving 
■ado--.     It  ai.>peers  that  the  Savings  L  Loc:i  Society  loaned  '-500  to 


157. 

Christopher  on  llci,'  10,   18S2,   aiic'.  he  aac.  '.lis  tl-eu  -/ife,   Clara,    e::ccutec. 
their  mortja^^e  of  Gie  preaiset.   to  cecure  pa^raent  of  the  loan.     This  nort- 
ga.ZO  rested  upon  the  property  up  to  1899,   aad,   as   sl-'.o\ni  above,   Clara 
Pevorill,   o:i  Llay  15,    1899,   cc^iveyec.  the  property  to   the  Savings  C  Loaii 
Society,  auc'.  "by  an  agreeiiEnt  c.ated  Ilay  SI,    1099,   tloe  loan  society  entered 
into  a  contract   to  sell  her  the  la:id  for   tlae  sU;:j  of  OOOO,   to  be  paid  in 
installments — the  last  one  falling  due  Ilay  10,   1905 — she  to  pay  all   ta;:es 
on  the  land,   "and  to  cultivate  ^nd  care  for  said  preoiiess,   first  party 
(the  society)   agreeing",   on  payment  a::d  pei-for;nance  of  tie  other  covena:its'' 
to  give  second  "party  a  deed."     It  appeared  t:.ia.t  Clara  Peverill  paid  throe 
annual  iust;..ll!inent£,   1900,   1901,    1902,   of  ';50  eacl.,   and,   as  we  ha,ve  seen, 
in  Ilay,   1903,  deeded  ii.e  propei-ty  to  the  Lavin^E  £^  Loaii  Society  probabljr 
because  she  could  maize  no  nors  pay/nents.     ITae  record  title  clearly  ruiis 
fro;n  Eobinson  to  Chi'iGtopher  Peverill,  and  ./as  held  by  him  as  co.Tinuni ty 
property  at   tiiO  time  the  decree  of  divorce  "/as  entered,  having  been  axj- 
c;_uired  daring  his  raairisg'e  -ith  Clar:..     Civ.  Code,   Sec.  164.     Kie  record 
does  not  disclose  tlie   terms   of  Ilobinson's  bond  for   a  deed. 

One  oi   the   is^^ues   in  the  divorce  case  ".;as  as  to  how  Peverill  held 
the  property,  he  cla.i.Tiing  it  "as  co.iv.unity,    and  she  claiming  it  as  her 
separate  property,  precunably  by  virtue  of   the  ouitclal'ii  deed  of  Chi'ist- 
opher  to  Coulthsxd  and   the  latte:  's  cuitclain  dsed  to  her.     But  P.obinson 
conveyed  to  Christo^Aox    subsequently  and  Cliiistopher's  aftsr-acc^uired 
title  vested  valid  title  in  hiiTi,    thus  rendering  his  previous  C;uitclair;.  to 
Coulthard  ineffectual.      1  Devlin  on  Deeds,   Sec.   27;  IIcDonald  v.  ikfjnonds, 
44  Cal.  528,  and  caset    there  cited.     Eie  decree  of  divorce  failed  to  dis- 
pose of  the  real  estate  in  cuestio::  then  ovned  by  Christopher.     Being 
conr.utiitj' property,  he  a:id  his  divorced  •'ifo  Clai"a,   as   to  this  lend,  be- 
caiTie  tenants  in  co:xion.     DeGodey  v,  LeGodey,   S9  Cal»   157;   Biggi  v.  Biggi, 
96  Cal.   S5,   52  Pac.   605,    55  1.%  St.  ?.eiJ.   141.  P.espoudent  contends   that 
Gie  question  of  plaintiff's  right  to  a  one-lialf  interest   in  the  property 
as   the  successor  of  Clara  ieveiill  ^7as  not  raised  by  the  plea^.ings;   that 
because  plaintiff  clal.iod   tln-oughout    tlifi   urial   tZ'^t  Clara  v/as  the  ov.ner 
of  tlie  entire  property,    "plaintiff  -.all  not  no-^v  be  permitted  to  change 
his  theory  of  tli3  case  by  tl.e  claim  'diat   tl-s  property  ■  "as  C0i::;nunity  prop- 
erty.''    Che  pleadings  put  the   title   m  issue.     Plaintiil  h^d  the  right   to 
claLn  the  entire  title  :  ;id  sho--'    .hatever   intsre&t  he  had  in  til:e  property. 
Respondent  \/aE  not  iiisled  to  his   injury  by  any  position  talcen  by  appellant 
for  it   is  partly  t:-j:;.-ough  the  e-.-idence   sub,.iittsd  by  respondent  at  the   trial 
that   the    true  situation  of  the  title    .as  disclosed,     C:ers  was  considerable 
evidwi.co  i. -troduGcd  to  cho\'  adverse   title  i:i  Clara.     'Te   tliinl:,  ]ioi/ever, 
the.t  it  ^/as  ■, holly  insufficient.     Cle^-rly  t<Iie  failed  to    s::ov,   if  it    "ere 
possible  to  £0  sho\/,   tli;. t  ^rioj:   to  tl^e  decree  of  tavorce  she  had  possess- 
ion adversely  to  her  husband.     By  the  dec.ae   she  beca-.ie  a  tenant  in  coa- 
:aon  \dth  hi;.,  and    that  relation  continued  to  the  day  of  his  derth. 

It  \;as  said  ir.  llillc-r  v,  liye-.s,  '1-6  Cal.  555,  76  Pac.  261,  cited 
approvingly  in  Pav.bel  v.  McFarland,  14.':  Cal.  717:  ='It  is  cle.r  r.iat-an 
adv3.se  Iioldiug  .-Jid  cl^J.n  of  title  do  not,  of  thensolves,  constitute  rn 
ouster.  The  tencnt  out  of  posses:iion,  Ir.s  --.  zijit  to  assume  th:t  possess- 
ion of  h.is  co-tencnt  is  his  possrssion,  until  informed  to  the  contraz-y, 
either  by  e;:pre£.s  uouice  or  by  .jiits  ...nf.  dec lar..-; ions  -.iiich  .x.y  possibly 
be  eruiv-r.lent   to  notice  luider  cert-in  circujnst ~nces.     But  uniil  he  has 


158. 

aotice,  ei  tlier  r.C'tur-1  or  coastructive,   in  some  form,   tli:.t  the  possession 
of  his  coteur-.nt  has  become  hostile,   it  mil  be  deemed  in  lev.'  to  h-r-.ve  been 
crniccble,   not.Ti  thstaacling;  the  tenrait  in  possession  lic.j  in  fciit,  hr.ve  been 
holding  r-dveisely."     In  Unger  v.  Mooney,    60  Cr.l.  586,   5S2,  49  ;uti.  P.ep. 
100,   the  court  sc.id:      "Hence  there  must  be  some  conduct  of   the  occupying 
tencjit  evidenced  by  acts  or  decl-.mtions,  or  both,  in  its  nr-.ture  and 
essence  hostile  to   tjie   title  of  the  ten-oit  out  of  possession,   raid  irnpr.rt- 
ing  ]&io-,/ledge  of  such  hostility  to  the  latter,   to  effect  his  right."     See, 
also,  V/interburn  v.    Chaiiibers,   91  Cal.  170-160,    27  Pac.  658.  See,   also, 
subject  discussed  ^b-j  Hr.  Wood  in  his  ■■■igrV.  on  Limitaions    (section  266), 
v/here  it   is  s-.id   that   "the  evidence  must   be  much  stronger  thr.n  -.ould  be 
required  to  establish  a  title  by  possession  in  a  str-nger." 

2he  decree  of  divorce  was  entered  March  25,   1896.     I.Irs.  Peverill 
testified  as  to  hei   recidence:      "I  v/ent  to   the  Purington  rrnch  in  the 
early  part  of  1901.     I  did  liOt  live  continuously  on  the  place  fro/n  the 
time  I  separated  from  ray  husbriid  until  I  went   to  the  Purington  r::iich.   I 
was  a-way  at  different  periods,  and  one  time  chcnged  my  residence  absolutely 
to  San  Benito  county  for  all  of  a  year,"  v/here  she  resided  vath  her   lather. 
Tlais  was  v,hilG  she  was  procuring  her  divorce.     The  statute,    in  our  opinion, 
did  not  begin   to   run,    if  at  all,   prior  to  Inrch  25,    1896.     llrs.  Peverill 
v/as  awarded  the  custody  of   the  children   (all  minors),   vx^C  she  testified, 
that,   after  obtaining  her  divorce    (at  v/loat  date   she  did  not  say),    she 
"went  back  to   the  place  involved  in  this  suit"  and   lived  there  -..Ith  her 
children.     The  ranch  vt.e  her  home.     Lhe  v;cs  av/ay  frequently  enrployed  else- 
where as  a  nurse,    sometimes  for   tv/o  or  three  months,  but  the  children  re- 
mained there  and  "the  boys  farmed  the  ranch."     Ker  son  ''"/ill  was   (1896)   It-  '. 
or  15  ye:,rs  old;"  George  was  a  year  younger  thai!  V/ill,  and  Uary  was  a  yerj 
older  thcii  '/ill.     Christopher  died  liay  CO,    1900,   anc.  whatever  interest  he 
then  hr.d  in  the  property  vested  iiomediately  in  his  heirs   at  lc.\u     Assuming 
thr.t  the  statute  \;;.s  r'lnning  against  Ghilstopher  Peverill  from  I.iarch  25, 
1896,   it  had  run  "but  4  years  and  2  montI:s  -when  he  died.     Unless,   t'.ierefore, 
the  evidence    ill  -./arri-nt  us  in  holding  that  at  his  death  tlie  statute  con- 
tinued to  run  against  these  children,  plaintiff  has  failed  to  establish  ". . 
his  coiitention.     Tliese  children,   as  \re  have  seen,   became  tenants  in  com- 
monv.ith  their  motlier.     The  evidence  is  that  they  '■'■lorlzed.  (the  pl'ce)  aix- 
applied  the  proceeds  of  their  .;orl-:  upon  the  interest  of  this  debt    (the  mort- 
gage debt)."     lirs.  Pevverill  testified:      "Idid  not   at  any  time  "hile  occupy- 
ing the  place,  after  the   separation  from  my  husband  malie  any  statement    to 
my  children  to  the  efiect   that  I  v/as  the  sole  ovaer  of  the  place,   and  that 
my  children  had  no  interest   in  it.      I  l:ad  no  occasion  to   say  anytliing  about 
it  at  rJ.1.     I  have  no  recollection  that   my  of   tliem  ever  inquired  of  me  as 
to  the  title  of   the  land.     The  children  liad  marlceted  the  crops  and  received 
the  proceeds  and  e::pended  the  same  for  the  use  of   the  fa:nily.      I  have  left 
the  matter  entirely  to   the.-i  at  times."     Eiese  children  continued  to  sustain 
this  relation,    loohing  after  the  property,   jointly  -.dtl-.  tlieir  mother  end 
solely  \.hen  slie  was  absent,  as  happened  often,  ui.til  February,   1901,   -hen 
vatness  Htmphi-ey,   as  he  testified,   leased  the  place  for  tlie.t  year  cJid  ISrs. 
Peverill  want  to  the  Purington  place   to  live.     There  is  not   the  slightest 
evidence  tending  to  sl-o  •  that  she  held  the  place  or  claiivied  it  adversely 
to  her  children,   in  tr.e  se::se  of  the  statute,  from  the  death  of  her  late 
husbcnd   (liay  oO,   1900)    to    the  leasing  oi    it   to  HumiSirey   (February,   1901). 
Wliatever  vio\'  nry  bo  t  ..:en  of  the  evidence  upto  this   time,   the  continuity 


iT? 


,_^^^^^,  ^^  ___  ^  ^ 


^ 


-V^ 


159. 

of  her  allesed  adverr-e  posf^ei^siO'i  v.s.?:  "brolcen  from  "ay  to   tho  following 
Fe>2ruary.     Ccrrol-! t.^  that  j.t  v:aT  ro.;v'Y.v?d  \iy  ■^iiifj  a-it  of  o\iioryIii.p  xv.  :".caG- 
ii-ig  the  pro  .per  ■■.-3-,  v/iir.ch  \:o  aro  f.;r  :':'roc;  '^iO'Jdi.Tio  »,s  suf  ■f'ic.-'.oii-i;,  o.£/;p"r..?t 
hor  tenants  in  corjno;:.,   the  a i-al-.itP.  i^ivi  not  rt<n  t^.o  reauis-.te  tine  vifj-yti 
t?iS   arjtiOE  t??.^  cnvr.ejj.r,r).lc      '.Tii^.  ■LJ.r.3..r:.v;T>   of  tlif^  c^urt,    ho\7ov6r.    th-.t  Plain- 
tixf  >'ad  no  i-i^;c--»i.'.i;   ra  t":io  pr':pei-;;-v   ?.ad  thai:  defendant  v/c.s   the  gvapr 
t'leroof ,  suhject  only  to  adjaluxst-ratioa,  arc  not  support odJby_the_evi- 
dence .         ~  " ^  "  "~" 

Sie  judgment  aiui   order  are  reversed,  and  the  cause  remanded  for  a 
nev;  trial.  —  ^. 


Vq  concur:     IIcLaughlin,   J.;   Buolcles,   J. 

on  Petition  for  PcOhoarlog^. 

Chipman,  P.   J. — It  is  now  claimnd,  as  v/e  understand  the  petition, 
that  hy  the  decree  of  divorce  introdiice'l   by  pr'ainLif f ,    tlao  property  rights 
of  tho  parties  to  the  divorce  actions  v«^re  fully  asid  finally  determin3d. 
It  appeared  from  the  complaint  tlr.t  plaintiff,  I'as,  Peverill,   said  noth- 
ing ahout  any  property.     In  his  znvvjf^r  and  cl-os^-conplt^int  defend ar^t  Pev- 
erill  referred   to  certaj.n  personal  prcpor-.y,  acd  also  to  tho  recxL  proper- 
ty nov;  in  controversy;   all  of  \ihich  ho  averred  v/an   the  comnunity  property 
of  tlTC  parties. 

m  her  ansv;er  to  the  crocs-complaint,  plaintiff  does  not  mention 
tine  personal  x^roporty,   hut  denies  that   the  real  property  is  conxiunity 
property,  and  avers  that  it  is  her  separa^ie  property.     The  decree,  as 
pointed  out  in  the   opinion,  purpcrtod  to  dispose  only  of  certain  specified 
articles  of  cor.munity  and  personal  prvportVo     It  seems  clear  to  us  that 
the  decree  left  tii3  real  ectate  undlspoLel  of.     In  the  preser.t  action,  %Te 
are  not  scehing  to  set  aside  or  disirarb  that  decree,   but   only  to  give  it 
effect  so  far  as  vre  may  do   so.     If  it  be  tiae,   as  we  thank  it  is,   that 
the   real  property  re;nained  undispoood  of  "by  that  decree,   the  pafi-ties  re- 
mained tenants   in  connoi!.  of  tri3  rea'J   proper' l;y  a"  v/as  pointed  out.     Loolc- 
ing,   then,   to,  the  conveyances,  v/e  fird  that  ChristopVier  Peverill  conveyed 
Tjy  quitclaim  to  Coulthaxd  Hovemhcr  2(-,   1390,     Bat  an  Peverill  then  had 
no  title,  he  conveyed  nothing.     On  xlpri:    16,   1892,  Eobinson,   the  source 
of  title,  conveyed  by  grant,   bargai:a  arc',  sale  to  Peverill,  who  died  v/ith- 
out  conveying  to  any  on;-),   and  his  interest  -frested  at  his  death  in  his 
heirs  at  lav;.     Iho   opinion  shows  ho.7  re  oame  about  that  !iis  former  wife, 
Clara,  had  an  interest  in  the  property  as  tenant  in  common,   and  that  her 
grantee  succeeded  to  that  interest;. 

Y/e  are  unable   to  discover  any  error  in  the  decision  heretogore  ren- 
dered    and  the  petition  for  a  rehearing  is  therefore  denied. 

V;e  concur:     KAH?,   J.;   BUPJETT,   J. 


160. 


DOIIOnKI  AlffiROSE,  Appellant,   v.  AUGL"STA. 
AI'IBROSr:  IlOOIffi  ot  al..  Respondents. 

(46  Wash.  465,    90  p.   568). 
1907. 

Appeal  from  a  judgment  of  tlie  superior  court  for  Snohoraich  coimty. 
Black,   J.,   entered  Dec einber  7,   1906,  upon  suaU-lning;  a  demurrer  to  tlie 
complaint,  dismissiiig  on  action  to  decree  c-ji  interest  in  real  property 
and  i'or~C3acel lotion  of  a  deed^     lever sed . 

Rudkiu,   J.— The  complaint   in  this  action  alleges  that  the  plaintiff 
Domoniki  Ambrose  and  the  defendant  Au,susta  Ai^aTDrosc  Moore  V/-ere  husbrJid 
and  v/ife  on  and  prior  to  the  15th  day  of  Ocfco"bor,  1904,  and  v.-ere   the  ov;n- 
ers  arc',  entitled  to  the  possession  of  the  premises  no-;?  in  controversy; 
that  on  the  aTsove  date  said  defesndant  induced  the  plaintiff  to  e:cecute  a 
deed  of  said  premises  to  the  defendant  liar;,'  Ambrose;   that  it  was  then  and 
there  agreed  tliat  said  deed  should  not  "be  delivered  to  the  grantee  thei-e- 
in  named,  but  sliould  be  placed  in  escro\7  in  tlie  :50Esession  of  one  Cormn 
L,  Marsh,  v/ith   instructions  not  to  deliver  tine   sama  to  the   s^antee  or  to 
any  person  other  than  the  plsintif  f  herein,   t:^at  on  the  SSth  day  of  Ilarch, 
1905,    the   defendant  Augusta  AiTibross  Iloore  obtained  a  decree  of  divorce 
from  the  plaintiff,  but  fiic  property'  now  in  controversy  \/aE  not  mentioned 
in  t>i3  divorce  proceedings,  and  the  plaintiff  made  no  apjearaixe  in  that 
action;    tliat  on  the  9th  day  of  February,    1905,   said  Corwin  L.  Ilarch,   with- 
out  the  ICQOwledge  or  consent  oi    the  plaintiff   and  against  his  eixpress   in- 
structions, delivered  said  deed  to  !Iary  Ambrose  tie  grantee  tharein  named, 
a2d  the  saae  has  been  filed  for  record,    that  tie  plaintiff  never  author- 
ized or  consented  to  the  delivei-y  of  said  deed,  never  ratified  such  de- 
livery aad  received  no  consideration  therefor;   that  the  plaintiff  has  de- 
manded a  reconveyance  of  the  property  which  demand  has  been  refused;    that 
the  defendant  Augusta  Ambrose  Moore  has  refused  to  become  a  co-plaintiff 
in  Ihe  action  aiicL    is  made  a  party  defendant;    that    Qie  defendant  Seorge 
Moore  is  tie  husband  of  the  defendant  Augusta  /uiibrose  Iloore,   and  that  the 
remaining  defendants  have   or  claim  some   interest   in  the  property''       3ie 
prayer  of  the  complaint  is  that  the  plaintiff  be  decreed  to  be   tie   a\Tner 
of  an  undivided  one-half   interest  in  the  propertj,';   that  ty&  deed  to   the 
defendant  :iar;!>'  Ambrcse  be  cancelled  and  held  fear  naught;   that  the  plain- 
tiff be  let  into  possession  of  the  premises,  aixl  for  such   other  ard  fur- 
ther relief  as   to  the  court  seem  just  and  equitable  in  the  premises. 

The  defendants  e^enurred  to  the  complaint  for  the  reason  that  it  did 
not  state  facts  sufficient  to  constitute  a.  cause  of   action.     The  demurrer 
was  sustained,  and  the  plaintiff  refusing  to  plead  further,   a  judsmeiit  of 
of  dismissal  v/as  entered,  from  uhioL   tlie  present  appeal  is  prosecuted, 

The  complaint  avers  o^vaership  in  tie  appellant  and  the  respondent 
Augusta  Ambrose  Iloore,  t::air  ri^it  of  possession,  an  adverse  holding  by 
the  remaining  respondents, under  a  deed  \/hioh  is  void  for  want  of  deliv- 
ery, and  a  refusal  of  tiB  coovmer  to  join  in  the  action.  £uch  a  com- 
plaint clearly  states  a  cause  of  action,  unless  the  allegation  that  tiie 
appellant  and  the  respondeat  .^ugusta  Ambrose  lioore  were  divorced,  \nth- 
out  any  adjudication  Oi.-  disposition  of  theic  property  rii^ts,  defeats  a 
recover^'-. 


161 .  - 

"In  ijrantit^g  adisrorco",   the  court  shall  also  malce   svch  disposition 
of  the  property   of  the  partioe  as  sholl  appear  jtist  and  equitable,  having 
regard  to  the  respective  merits  of  the  parties,  and  to  the  condition  in 
vhich  they  .vill  be  loft  by  sich  divorce,  and  to  the  party  through  \*om 
the  property  v/as  acq'aired,  and  to  the  burdcins   imposed  iipon  it  far  the 
benefit  of  the  children.     .     .     .     ."     Bal.  Code,  Sec.  5723  (E.   Q.  Sec. 
4637). 

But  this  can  only  be  done  •'here  the  property  is  brought  before  the  divorce 
court  by  complaint,  answer,   or  cross  complaint.     If  th&  property  riglits 
of  tlB  parties  are  not  thus  brought  before  the  court  in  some  appropriate 
manner,   such  ra^ts  are  not  ard.  cannot  be  affected  by  the  decree.    Phil- 
bricfe  V.  Andrews,   8  Wash.  7,   35  Pao.  558.     V/here  no  disposition  of  the 
property  r  jghts  of  the  parties  is  made  by  the  divorce  court,  the  separate 
property  of  the  husband  prior  to  the  divorce  becomes  his   individual  prop- 
erty after  divorce,    the  separate  property  of  the  v/ife  becomes  her  indiv- 
ic.ual  property,  and  from  the  necessities  of  the  case,  their  joint  or  com- 
munity propertj'  must  becoioa  common  property.     After  the  divorce  there   is 
no  community  property,     The  divorce  does  not  vest  or  divest  title,   the 
title  does  not  remain  in  abeyance,  and  it  must  vest  in  the  former  ov/ners 
of  the  property  as  tenants  in  common.    De  Godej,?-  v.   Godey,  39  Cal-   157; 
Biggi  V.   Biggi,    98  Cal.  55,   52  Pac.   805,   55  Am.  St.   141. 
In  the  latter  case  the  court  said; 

"The  coaweyance  of  fiie  land  to  the  husband  an.d  wife  made  it  presun©- 
tively  community  property ,  aad  tl:eir  subsequent  divorce  v/ithout  any  dis- 
position of  that  property  in  the  decree  left   Ihem  tenants  in  cornmon. " 

So  far  as  the  equitable  rights  of  the  parties  are  concerned,    it  can 
malE  no  difference  v;het^-er  the  property  was  originally  conveyed  to  the 
husband,   to  the  wife,    or  in  both  husband  and  wife.     Tlie-  respondents  con- 
tend, however,  that  the  appellant  has  only  such  interest  in  the  property 
as  the  dirorce  court  might  have  awarded  to  him,  considering  the  merits  of 
the  parties,   etc.     If  \Te  \.ere  to  concede  this,  perhaps  he  has  still  a 
valid  subsisting  interest  in  Ihe  property  vhich  would  entitle  him  to  main- 
tain this  action  under  Bal.  Code,  Sec,   5500   (P.  C  Sec.   1142).     But   the 
respondents'  contention  cannot  be  upheld.     If  it  were,  neither  the  husband 
or  v/ife  would  have  any  fi;:ed  or  tangible  interest  in  either  separate  or 
community  property  after  a  divorce,    in. which  property  ri^ts  were  not  ad- 
judicated, for  all  property,  \*ether  separate  or  community,  may  be  dis- 
posed of  by  the  divor-ce  court.     In  our  opinion  when  a  person  pi^osecutes 
a  suit  for  divorce  and  fails  to  bring  the  property  riitits  of  the  parties 
before  the  coui-t  for  adjudication,  he  or  she  waives  any  right  in  or  to 
tSie  property  of  tie   other  spouse;  and  viaen  a  defendant  submits  to  a- di- 
vorce under  lilo  circumstances  the  same  rule  will  ^ply.     Ihe  povrer  to 
dispose  of  the  property  of  the  husband  and  -Tife  is  a  mere  incident   of  the 
power  to  grant   the  di/orce,    and  ordinarily  tliat  power  cannot  be  e::ercised 
by  aiwther  court  at  arothar  time  or   in  an  independent  action.     Public 
policy  and  the  policj^  of  the  law  vdll  be  best  subserved  by  confining  the 
inquirj'  into  tlie  merits  of  ttie  divorced  parties  to  the  divorce  court.  '. 
Ihere  may  be  exceptions  to  this  rule,  in  case  of  fraiai,  or  -±iere   the  prop- 
erty is  v/ithout. thei  jurir diction  of  the  court,  but  the  general  rule  is  as 
^e  have  stated,   snS.  tlois  case  forms  no  ecicegtion  to  that  rule.     T/hile  t!ie 
complaint  does  not  allege  in  direct  terms  that   toe  property  ;7as  the  com- 


162. 

munity  property  of  tie  appellant  aixl  tlie  responde:±  hie  farmer  wife-,   all 
portiQE  acGurae   in  Gig  ir  briefs  tliat  sxch  vaas  t^-S  fact.     If  so,    it  follows 
from  v/hat  \.'e  tove  said   tliat  the  coj:q?laint  sliows  that   flie  appellsnt   ic   the 
o\nxix   of  an  undivided  one-half  interect  in  tlie  property,   and  othervdse 
Gtates  a  cause  of  action.     Habie  v.  V/liittaimr,  10  V/a£h.   656,   59  Pac.  172. 


ThQ   jud^^ent   of  the  court  "belo'-/  ic   tlierefore  reversed,   v/ith  direc- 
tions  to   overrule   the  demurrer  and  f oi  further  proceedings  not   inconsis- 
tent with  this   opinion.  ^, 

Hadley,   C.   J.,   Fullerton,    Crov;,  Bunbar,  Root/and  Ilount,   JJ.,   concur. 


165. 


FLCr.nnC2  E:jlVJf ,   as  Executrl::  etc.,  A^-i-'ellant,  v.  '        , 

w.iim;  i'OCOCZ,   as  AcLmaistratri::  etc. 
EespondGnt. 
(92  Uasli  625,    1Q15) 
Appeal  from  a  judsment  of    tlie  si^Jierior  coui-t  for  ■.^p.itrnaii  county, 
I'lcCroEkey,   J".,   enteret'.  December  24,   1915,  upoa  sustainin;.;  a  demurrer  to    . 
the  complaiiita  disracsiag  an  action  to  recover  sxx  interest  iutlie  prop- 
erty of  aa  estate.     Reversed,    ■ 

Parker,   J,— The  plaintiff  seeks  recovery  froir.  tlie  estate  of  her  de- 
ceased faQier,   B.   E.  Harvey,    the  sx!m-of-y2,500,  v)hioh  she  claims  as  tiie 
"share  of  her  deceased  rnotacr's   interest~i.h  Gie   conrauaity  property  of  her 
father  and  mother  left  in  his  possession  vmdispoaed  of  by  the  decree  of 
divorce  ".hich'"disL0lvedThelr^marrie.3e.     The  defendant's  demurrer  to   the 
cosjplaint  lieing;  by  the   superior  coui't   £.us£aihed,   and-the  plaintiff  elect- 
ing _t<?  standjajon^her  complaint  and  not  plead  further,   jud^-ment  of  dis- 
missal was  rendered  against  her,  ±rom  vdiich  she  has  appealed,  to  tlxLs 
c  oulr  t^     ~~ ■ — ^ 

Ihe  complaint,   omitting  formal  parts,   reads  as  follows: 

"Plaintiff  alleges   Gaat  she  is   the  sole  daughter  of  Elizabeth  M. 
Harvey,  deceased,   ;.ix\  3.  F.  Harvey,  deceased;    tliat  her  father,   B.  I\ 
Haxvey,  died  prior  to  the   tine  of  her  mother's  death  leaving  au  estate 
of  the  value  of  appror.imately  C)l5,000,   arC-  a  'dll  by  the  terms  of  v.hida 
certain  legacies  '/ere  given  aiil   the  feleiideiit,  Larali  Pocock,  \7as  made 
sole  residuary  legatee.     Plaintiff  furtlier  alleges  tliat  she  is   tha  sole 
legatee  and  e:;3cutri::  of   tie   l-is:t  >/ill  of  Elizabeth  K.  Harvey,  and  Sarali 
Pocock  is  the  ac-.-ininistratri::  of  the  said  3.  F.  Harvey's  estate  and  neither 
estate  has  yet  been  closed. 

"Prior^to  the  da^.th  oi  said  B^   ?.  Harvey  aiid  ZLizabeth  Harvey,    to 
'-■lt3— '33rtaie-6^'i~dIy~of  i-'ebrTiai'yj    1915.    they  \.3re  divoiced  from  each  o^.e.- 
by  decr^e_of^  tha_a;i^xe_Stttitledj;ourt.i_t^  decree  certain  com- 

liTOnit:/  property  belonging  to   tiie  partios  '.as  brought   into  court  by  the^ 
pleadings  and.~dr7xd3c.7~   giere  v/as  certain  other  property-,   ho\rever-,   be- 
longing to^the   couiflunitj',   in  the  poscessioji  and  coi-trol  of  said  B.   P. 
Harvey  -/liich   ./as  'aot  bi  ought  into  coixrt  in  tlie  said  cavorcs  proceedings 
nov   divided  by   wie  co'.^t.      Z^  said  property -.as  the  txm  of  *3,000  in 
cash  and  a  $2,000  morti^'age.     2ie  property  -..-aE  sequestered  "by  said  B.   F. 
Harvey  and  purposely  ■■Ithlaeld  fron  the  court  so  tliat  it  -.-ould  not  "be  di-- 
videdj  and  said  B,   F.  Karvey  converted  said  aoney  and  property  to  his 
O'.-n  use  and  had  ttie  LOle  vse  sni?.  benefit  thereof.     2he  said  proi:erty  af- 
ter said  divorce  become  the  coranon  propert3'-  of  said  B.  F.  HELrvey  and 
Elizabeth  I!.  Harve-y  a;ad  said.  Elisabeth  U.  Harvey  v/as   therefore  tlie  ri fit- 
ful ovmer  of  one-lialf  tliereof ,    to  v/it:     the  imm  of  v2,o00. 

■'Bae  tima  -ithin  .hich  creditors  -./ero  to  present  their  claims  against 
the   estate  of  5     F,  Esivej',  deceased,  e::pired  on  July  ZZ,   1915.     Prior  to 
that  tine  the  plai'.itit'x  caxiced  to  bo  presented  to  the   said  EaraJi  Pocockj 
as  ac'aninistratri::  of  the  said  estate  a  claia  duly  verified  according  to 


164/ 

the  lav/  clcirains  the  5w.i  of  'i>l,500  as  a  lawful  charge  against  said  estate 
by  reason  of  the  facts  heroiiiboforo  alleged.     At  tiiat   ti::^o  plaintiff  had 
no  toov/lodge  or   infor.natioa  v/it'ii  regard  to  eny  sum  soquettered  as  above 
alleged  e::cept   the   su..i  of  Jo,QOQ  and  did  not  diBCOver  tie  fact  tff   the  e:;- 
istevice  of  the  ;>2,000  additional  until  on  or  about  Augutt  5,   1S15.     Said 
claim  was  rejected  in  i.vriting  by  said  Carali  Pococlc  and  v/ac  filed  in  the 
said  probate  proceedings  on  August  21,   1915.     Three  raonths  liave  not  yet 
elapsed  since  said  rejection  of  clain.-' 

'Ihe  theory  upon  v/iiich  the  lesjrned  trial   coui-t  seems  to  have  sustr.ined 
the  demurrer,   and  upon  "^Jliich  tlie  argument  of  counsel  for  lespondent  pro- 
ceeds,   it.    that  the  decree   in  tJio  divorce  action  "'oecame  a  final  adjudication 
of  the  community  property  rightr.  of  Ilrs.  Harvey,   estopping  her  fro.n  there- 
after claiming  any  of  tliG  perscnal  coa.iunit;/  property  Eenaining  in  the 
posses £-ion  of  her  husband,  even  thougl^  ouch  property  •..•as  not  brou^^it  into 
tlie  divorce  action  or   specifically  disposed  of  by  the  decree  of  divorce. 
It  is    to  be  noted  tliat   the  complaint  does  not   allege  that  tliere  ./as  any 
alleg:.tion  in  the  complaint  in  tie  divorce  action  or  adjudication  in  the 
decree  in  that  action  that  tiiere  v/as  no  other  comiunity  property  than  that 
disposed  of  specifically  by  the  decree,  but   the  allegation  is  tl:iat   this 
alleged  cOimaunity  property  "\;aE  not  broug'lrt    into  court   in  said  divorce  pro- 
ceedings nor   divided  by  the  court."     Tiiit,  -'6   tliinlc,  negatives   1iie  idea 
that  there  \/as  any  aff iriviative  adjudicaoion,   or   say  occassion   therefor, 
that  there  m&s  no  other  cOiHnurnity  property  tlian  that   speciiicall:?  brov.^;-t 
into  the  divorce  action  and  disposed  of  by  the  decree  therein.     It  h;.s  be- 
come tto    settled  la\.'  of  this  state  th^t,   under  such  a  tt-te  oi    facts,    the 
coia-nuuity  property  undispioced  of  by  the  decree  of  divoi'ce  remains  undisturb 
ed  so  fer  as  the  respective  interests  of  tlie  mei-nbers  of  the  co-pxiiniity  there- 
in is  concernec^.,   and  that  either  of  t:-:oiii  .iiay  thereafter  enforce  their 
rights  in  each  property  Ity  another  action,     Luch  property  becoraet  comnon 
property  instead  of  c Oi^inuni ty  property  after  tl;ie  dissolution  of   the  com- 
nunity  by  the  decree  of  divoioe.     Aj-.ibrose  v,  lioore,  46  \;a£h.  ^-SL',   90  rex. 
588,   11  L.  n.  ;..    (IT.S.)    lOG;   Graves  v.   Graves,   45  V'ash.  66^,   94  iac.  4:81: 
Jauaes  v.  James,  51  "'ash.   60,   97  ?ac.  1115;  Barldey  v.  JLraerican  £av.  Bajih 
S:  iYust  Co.,   61  'Vash.  415,    112  Pac.  495;  KicV:c  v.  Eichc,   69  '7ae..   627,   125 
Pac.   945;   Schneider  v.  Biberge:: ,   76  ''as:!.   504,   156  Pac  701. 

Counsel  for  respondent,  while  conceding  this    to  be  the  general  rule, 
ingeniously  argue  that  personal  proiierty  remaining  in  ihe  possession  of 
one  of  the  spouses  at  the  time  of  the  divorce  decree,   the  pleadings  and 
the  decree  both  being  silent  at t o  the  disposition  of   such  property,   should 
constitute  an  e::caption  to   Qiis  genercl   rule.     Tlie  argtcneut  seeijs  to  be 
that,  because  this  alleged  ccinunity  property  in  the  possession  of  Ilr. 
Harvey  could  have  been  broug^it  into  the  divorce  proceedings  and  specifical", 
disposed  of  by  the  decree,  appellant,  as  the    successor  in  interest  of  lire. 
Harvey,   is  tl^reby  ei-topped  from  now  c^uestioning   fee  right  of  his  adminis- 
txatri::  to  sucii  property.      '7e  have  at  least  one  decision  of  this  court 
whiCii  plainly  malces  the  general  rule  above  noticed  applicable  to  personal 
property  remaining  in  the  poscescion  of   on©  of   tlie  spouses  rnd  tindisposed 
of  by   tiie  decree  of   divorce.     Sudi  vas,    in  substance,   the  holding  in 
Barl:ley  v.  American  Sav.  Banh  u  Trust   Co.,    supra,    where   tlie  husb.nd,  after 
divorce,   \.^aE  permitted  to  recover  one-half  of  a  s^jra  of  money  uie  -fcole  of 
which  v;a5  coaiauni t3''  property  and  in  the  possession  of   the  wife  at  the  time 


165. 

Of  tlE  rendering  or   <5\a  decree  ol"  divorce  flio&olving  their  marriage,  and 

was  not  brought   into  tho  divorce  action  "by  the  pleadinss  or  disposed  of 
by  t?iu  decree  of  divorce.     V.TiHe   that  action  was  against  tl^   banlc,    it 
stoci  in  the  shoes  of  the  wife,  with  knowledgn  of  the  fact  that  tho  money 
was  coionunity  property  before  tho  divorce  and  corjnon  property  of  the  for- 
mer members  of  Vx^q  c-orrumniity   tlicreafter.     Counsel  for  respondent  call  our 
attention  to,   and  rely  upon,   observations  madb  by  this  coiirt  in  Ferry  v. 
Feriy,   9  T/ash.   2o9,    57  Pac.  451,   and  Mng  v.  Miller,   10  Wash.   274,  58 
Pac.  1020.     There  may  be  sorre  rejaarlcs  in  those  decisions  lending  Eomo  sup- 
port to  the  theory  of  coxmsel  for  respondent,  but  we  tlilnk,   in  the  liiSht 
of  the  facts   involved  in  those  cases,  the  remarks  there  made  by  the  court 
are  not  controllins  here,   especially  in  tho  light   of  oar  later  decisions 
above  noticed.     V/o  a.Te  of  the  op5.nion  that  the  complaint  in  thie  action 
states  a  s°^  cause  of  action  in  so  fax  as  appellant's  right  to  reccrver 
the  $1,500,   the  one-half  of  tho  03,000  in  money,   remaining  in  LIr.  Harvey's 
hands  and  undisposed  of  by  the  decree  of  divorce,   is  ccmcerned. 

It  is  contended  in  respondent's  behalf  that  the  allegations  of  tha 
complaint  fail   to  chor/  Giat  aRrella^it'E  claim  for  tiie  01,500  was  presented 
to  respondent  at  .administratrix  by  any  one  entitled  to  present  the  same, 
this  upon  tho  ^hoory  that  appellant  -«ra.£.  not  individually  entitled  to 
present  or  ma^re  such  claim  because  the  estate  of  her  mother  was  still  in 
the  course  of  administration,   and  because  it  is  not  plain  from  t^e  alle^a- 
tiOBs   of  the  cCEiplaint  that  she  prosented  tls  eame  as  e:cecutri:i  of  her 
motiier'B  estate.     The  allegation  of  the  complaint  touching  this  matter  is 
that  ''the  plaintiff  caused  to  bo  presented  to  the  said  Sarah  Pocock,  as 
adminis tratrirt  of  th3  said  estate,  a  claim  duly  verified,  accoruia^  to 
the  law,  claiming-  the  sum  of  $1»500  as  a  la\7ful  charge  against  said  es- 
tate."   T7r  think  tSiis   amounts  to  an  allegation  that  sjipellant  presented 
the  claim,  both  individually  and  as  executrix,     mis  plainly  was  a  legal 
presentation,   thou^  liar  presentation  of  the  claim  individually  may  have 
been  unnecessary. 

It  ic  contended  in  appellant's  behalf  t3iat  she  has  pleaded  facts  suf- 
ficient to  excuse  lier  from  the  neooscity  of  presenting  a  claim  for  the 
one-half  of  tho  proceeds  of  the  mortgage,   the  argument  being  that  she  was 
excused  from  so  doing  in  bringing  this  action  because  of  her  want  of  toow- 
ledge  of  her  rights  to  such  sum  until  after  the  e:3?iration  of  the  year 
for  presentation  of  claims  of  creditors.     There  seems  to  be  two  valid 
reasons  why  the  failure  of  appellant  to  present  her  claim  to  the  execu- 
trix of  hor  father's  estate  defeats  her  ri  Jit  to  recover  the  one-half  of 
the  proceeds  of   the  viE;000  mortgage  in  this  action.     Section  1472  of  Rem* 
f:  Bal.  Code,  relating  to    tiie  presentation  of  claims  to  the  estates   af  de- 
ceased persons ,  reads: 

"If  a  claim  b©  not  prosented  v/ithiu  ona  year  after  the  first  publi- 
cation of  the  notice,    it  shall  be  barred." 

We  fici  no  provision  in  the  statute  authotiting  us  to  ignore  this 
plain "maiKiat^ ,   or  extend  the  time  for  filing  claims  because  of  the  want 
OdE'  Imowledge  on  the  part  of  tho  claimant  as  to  his  or  her  rights.     ISniB 
Is,   in  effect,   a  rtatut©  of  limitation  without  any  exception  therein, 
_and  in  such  cases  tlic  rule  seems  to  be  thoroughly  established  that  "'mere 
ignorance  of  tlis  facts  vhich  constitute  the  cause  of  action  will  not 


166. 

postrpone  J;]TD   operation  of  the  rtatuto  of  limitatiooas .»»     25  Cj;c.   1212; 
"Cornell  vrSdsa'i,    78  Y'ash.    562,   159  ?ac.   602,    51  L.   R-  A.    (IT-   S.)   270. 
JUliis  is  not  a  cause,  of- action  for  relicx  upon  t>ij  r^iow^:  of  fraud ,   in 
vhicli  case  tIic-3  mighfc  pofj£i"!:ly  "be  other  c  aatrcllinj  conEic'.erations ,   tui 
it  is  a/]pinrolo  cauoc  of  action  fa-  tlB  recoverj''  of  money,   the  proceodc 
o?Tho"nort^aie~^SIch.,  accordiiv;  to   tiie  alle:;aj;ic5is-j0f- t]ie~  conrplaint,^ 
accruocl  TDOioro  the  deatli  of  I.ir.  rlaiveyo 

Another  valid  roacon  whj''  apxjollant  ca;anot  recover   in  thic   action 
one-half  of  the  ■,/2,003  piocceds  of  the  mort^-aso  ic  because  no  claim  ?tas 
■been  presented  to  th9  adrainictrr-tri::  of  Ixi  father's  estate  at  any  time 
prior   to  tho  beginning  of   this  action.     Section  K-79,  ^em.  &  Bal_.   Code, 
reads: 

'_'no  holder  of  any  cl;g.in-a.irJ.as-t-an-acJ:ato^chall  jnaintain  an  action 
thereon,  unless  the  clain  cliall  1u;,vg  been  first  presented  to  th©  eiocutor 
or  adrninis  trator  . " 


'B'lis  section  hac  "been  given  full  force  and  effect  in  our  decision  in 
JicFarlnnd  v.   Pairlanb.    18  '7ash.   601,    53  Pac.    •259,    and  V/ard  v.  Ilas'aha,   71 
Tfe!;h.   679,   129  PaOc   595.      In  our   opinion  in  tlae  latter  case,    it   is   said: 
"The  presentation  is   a  fact  essential   to  the  cause  of  action  as  much  as 
tlae  ins trij-neiit  sued  on." 

Contention  is  trade  in  respondent's  "belialf  that  tlie  allegations  of 
the  complaint  do  not  s::o\i;  capacity  on  the  part  of  appellant   to  sue  in 
this   action.      The  arjjiiment  EocvriS   to  "be  that  she  has  no  capacity  to  sue 
as  an  individual  'oecuusa   tlie  estate  of  her  mother   is  still  in  the  course 
of  administration,  siic".   thx-t  tlie  allegations   of   the  cpitrplaint  do  not  show 
that  e1:s  is    tlio  duly  qualified  and  actios  administratrix  of  her  mother's 
estate.      2he   alle:;ation  of   tho  complaint  touching  her  TDein:;;  adninis tratris 
is  "that  she   is  the  sole  legatee  and  e::ecutri::  of    the  last  v;ill  of  Illisa- 
teth  I.I-  liarvey  "     Hiis,   it  must  "be  conceded,    is  a  somewhat  general  alle- 
gation;   out  in  vieT  of   the  liti-^ral  rales  of  pleading  prevailing  in  this 
state,  we  are  constrained  to  hold  that  it  i:i:iountE   to  a  sufficient  allega- 
tion of  her  'oeiug  the  legally  c^ualified  and  acting  executrix  of  her  moth- 
er';; estate.     V/liether  or  not  she  is  entitled  to  sue  individually  is, 
therefore,   of  no  consscuence  in  this  action.     Eer  joining  as  plaintiff 
in  her  individual  capacity  could  in  no  event  lessen  her  right  to  sue  as 
executrix  v,hilo  the    ertate  remains   in  the  course  of  ackiinistration. 

\7e  conclude,   therefore,   that   6ie  complaint  states  a  gocd.  cruse  of 
action  in  so   far  as  appellant's  claim  to  the  Cl,500.,    the  one-half  of  the 
03,000"  of   cash  remaining  of  tlie  ccTrraxmity  property  in  the  possession  of 
her  father  at   the   tir.a  ott   the  divorce,   is  concerned;  but  that  it  fails 
to  state  a  good  cause  of  action  in  so  far  as  lier  claim  for  the  $1,000, 
the  ono-half  of  tl^e  proceeds  of  tho  mortgage  lemaining  in  his  possession 
and  undisposed  of  by  the  decree  of  divorce,    is  concerned. 

2he  judgment  is  reversed,   and  the  cause  remanded  to  the  superior 
court  for  further  proceedings  not  inconsistent  v;ith  the  vic\/s  herein 
e:cpresEed .  t—  'i3^ 

Ilorris,  C.   J.,  I  Iain,  Holoorrib,   and  Bausmaja,^"JjT,  concur. 


167. 


PHILIP  S,  BAFJOinZ,  Appellant,   v.  AlEniCAIT 
SAYIITGS  BAUK  &  BlIBT  COIIPAIH',   Hespoiodont. 

(61  Vash.  4L15,   112    p.  495) 
1911. 

Appeal  "by  :;jlaintilf  from  a  judsneut  of  the   superior  covet  for  Ziu^ 
county,  KonalcL,  J-.,  entered  Fe'iamsry  5,   ISIO.  upoia  fiudiua's  J-n  favor  of 
theplaintiff,   after  ajtiial  ou.  the  merits  ■faemcstlis  court  \dthout  ^^ 
jury,   ill  an  action  for  conversion.    Affii^ined,. 

Gose,   J. — Eiis  action  v;as  Tsrou^lit  "by  tizz  plaintiff,    to  recor-.-er  daitt=_ 
a^es  for  the  amount   of  a  draft  v/l.icli  lie  alleges  tl:e  defendant  converteiL- 
'Eiero  was  a  jud^oGnt  for  the  plaintiff  foi  one-half  of  Cae  craount  of  the 
draft,  -ivith  interect  arsd  costs,  a:^"'.  he  lias  appealed, 

The  court  found  that  th9  appellant  and  his  ^.v±fe,_,S,  Ac  Sarld.e:';.  v/ei-e 
divorced^aT"th.e~cuit  of  the  \afe;  on  the  18th  day  of  July,   1908;   that  in 
1903,  a  draTt3WrOl2L.^ISiasTdrai;m-in-favo^^^  and  eut-orssd 

'Tiy-liimIE05e_or^a^il,of_ th^.2©i5all2nt _  cif. - S.  _ A-  BarHLey,  .tliSi^- Jiaa, JIMias. 
hus"band  ai2d  wife  and  residents  of  this   state ^tlaat  the  respondent  collect^ 
ed  the  draft  uoon-an^nsLocceiaent  by  the-'wife,_f or  her  husband  and  herself, 
she  \/ritin3  tho  husband's  name  upon  tlE  draft  at  the   instance  of  tlie  re- 
spondent;   tiiat  tiae  respondent  then  laie-j  that  the  endorsees  -./ere  husband 
and  Wife,  and  jfchat  sh3  'nad  no  author-ity   to  endorse  for   the  husband.;    tliat 
the  respondent,   Jifter^collectiizg  the  draft,   issued  a  certificate  of  depos- 
Tt^for  the   amount  to  the  ^/ife;   that  tlioreaftor  and  in  September,   1907, 
jhe  d^osited  the   saraS'  vath  t:-.e   respondent  subject  to  her  checlc;   tliat  _Q]2 — . 
the  date  ^e  decree^oTirivortte  was  granted,    there  remained  in  the  bank,  _ 
"of  Jggl?rpegegF'of  the  draft,  the  sum  of  ^259. 02;  and  that   tlie  oxaft  \Jas 
the  property  of  the  connunity  composed  of  tha  husband  and  vife^     lie  ^~ 
court  further  found  tliat  one  of  the  findings   in  the  divorce  suit,    in  ac- 
cordance with  the  allegations  of  the  complaint,  v/as  tliat  there   u-as  no  com- 
munity property. 

The  appellant  contends  that   the  draft  \-3as   the  personal  property  of 
the  community,   and  that  as  such  it  was  subject   to  his  management  and  con- 
trol, and  that  lie  had  the  same  power  of  disposition  over  it  as  he  had  of 
his  separate  property.     Assuming  th-at   it  'v/as  coiTmunity  property  before 
the  divorce  was  granted,  under  the  uniform  holdings  of  this  court   it  there- 
after ceased  to  be  such.     1!he  entrj'-  of  the  divorce  decree  dissolved  the 
community,  and  the  appellant  could  not  continue  as  manager  of  an  entity 
that  had  ceased  to  e::ist.     In  Ambrose  v.  Moore,  46  V/ash.  465,   90  Jac,  588, 
11  L.  R,  A.    (IT.  So)  103,   it  was  held  that,  after  the  divorce,   there  is  no 
community,   and  in  the  nature  of  thiiJgE,  nc  community  property;   and  tliat, 
viien  liie  communitj'-  property   is  not  brought  before  the  divorce  court  for 
adjudication,   the  f oi-mer  spouses  thereafter  hold  it   in  equal  rhares  as 
tenants  in  common.     Graves  v.   Graves,  40  wash.   664,   94  Pac-   481,  and  James 
V.  James,   51  V/ash.  60,   97  Pac.  1115,   are  to  the  sane  effect. 

It  ic   also  contended  that  the  allegations   in  the  divorce  complaint 
aud  the  findiiig  of  tie  divorce  court  in  response  thereto,   tha.t  tliere  '..^s 
ao  community  property,   estop  tlie  mfe  ard  those  claiming  through  or  under 


166. 

her  from  apsertin^,'  Gie  contrc^y.     Eckert  v.  £cl-3nitfc,   17  ''ash    iJec     466, 
110  Pac.   635,    is  citod  in  suijport  of  this  vier./.      The  point   is  not  v/ell 
t^^Bn.     Eie  case  is  ln&ie  foi-  reyiew  upon  tlie  findin^-E   of  fact  aiu-  conclu- 
sions of  lavv  only.     In  ths  a'bcence  of  tlie  exiCcjice,  ^/e  '/ill  accept  the 
findings  as  conclasivo.     It  may  -/ell  "be  tliat   &b  v-ife  v£,s  assorting  oiwn- 
ei-ship  of  th3  c^aft  in  the  divorce  pr-oceecMni's   in  ^ooc".  faith.      If  so,    it 
is  appai-ent  that  tuch  a  coiorse   .  oiilc  not  -.orlc  i^  estoppel-      IJhs  other 
authorities  cited  Vj  the  appellant  ha^e  xefe-_'3nc3  to  the  pov/er  of  the 
husT^and  over  the  coiimunitj'-  prqpeirty  -hil:    the  iriarriase  relation  e::ittc, 
anj?.  are  not  applicable  to  the   is  bus  "before  us. 

Uie  argument  tiia,t,   as  ro'sliist   tie  retpcnc.ent;   the  cppellant  can  re- 
C07er  the  full  ainount  of  the  6^- .3ft,    is  not  sound.     Ascumins  that  there 
was  a  conversion  \heu  tiB  proceeds  of  the  draft  v/eie  paid  to  tZae  v;ife, 
anc".  that  the  hushand  could  then  :iaV3  lecovered  from  tlie  respondent  the 
full  ajiiount  thereof;    it   is  obviouc    tiiat,    siixe  his  control  over  the  com- 
Viiunity  property  teriainated  and  his   interott  has  beco^ue  fi::ed  by  operation 
of  lav/,  he  can  recover  no  more  than  tlie  value  of  hi£   interest  in  the 
draft.     He  is   nov/  in  tl-&  same  position  he  \/ould  h^ve  occupied  Iiad  he  sold 
a  half  interest  in  the  cause  of  action  before  coim.iencing  his  suit.     It  is 
clear  that   Qie  respondent   is  subrogated  to  the  rights  of  the  v/ife. 

ye  l:iave   treated  the  case  as  though  tl'e  draft  was  controlled  by  the 
lav  pertaining*  to  coianunity  property,   inasmuch  as  the  parties  and  the 
court  below  so  treated  it.     It  is   tlie  opinion  of  the  v/riter,  however, 
that  the  husband  and  wife,   as  joint  endorsees  of  a  negotiable  instrument, 
sustained  the   saine  relation  to  a  thii-d  party  in  reference  to  it  as   any 
otl-fir  joint  holders  of  a  negotiable  instrument  would  occupy.     Hiis  view, 
hoT7ever,  utiuld  lead  to  the  same  end. 

The  judgment  is  affirmed. 

Chadwiclc,   Fullerton,  Parl^er,  and  Lount.    JJ.,   concur. 


169. 


AHITIE  E.  BEACH,  Respondeat,  v.  AEBIB 
D«  BRGWN,  Appellant. 

(20  VTash.   266.) 
1898. 

Appeal  from  Sirperior  Court,  lang  County. — Hon.   Orange  Jaciarbs, 
Judge.     Affirmed, 

ThB  opinion  of  the  court  was  delivered  Tjy 

Dunbar,  J. — This  is  an  action  "by  the  respondeat  against  the  appellant 
for  daJDOges  for  allenatii^_the: _af f^ctAons_of  respondent 'e^  husband .     Fde-L 
imta-rer  "was^int erpa£,ed_to_ the -Ojms^laiJit^ - to^fche-Bf f ec t  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause -of-acjtion a  which  v/as  over- 
raled»    A"  mdtiorLfi^a  non-suit  was  sJLso  rn^jde  and  overraled_.     Upon  the 
trial  of  the  cause  a  verdict  vjas  rendered  in  favor  of  the  respondent, 
judgment  vas  entered  in  accordance  ti:B-rei^th-,   and  an  appeal~was"  tafeen  to 
this  court. 

It  is  the  ^cjajtentionof  the_  agpellanV  in^the-fir«t  instoaee,  tha±_ 
this  action  cannot  be  maintained.,  for  the  reason  that  a  married  wwnanin 
the  state  of  Hadiington  cannot  rnaintain.  a  suit  in  her  ovai  najne  for  tort 
vdthout  her  husband  joining  her,  where  the  damages  secured  would  "be  oatn.- 
munity  property-     This  statement  assumes  somevhat  the  legal  questions  at 
issue.     But  on  the  main  proposition,   as  to  whether  a  married  \/oman  can 
maintain  this  action  for  the  loss  of  the  consortium  of  her  husband,   the 
authorities  are  somewhat  conflicting.      In  Duff ies  v.  iniffies,  76  Wis.  374 
(45  H.  "57.   522,   20  Am.  St.  Rep.  79),   a  case  which  v.as  strongly  relied  upon 
by  the   appellant,   it  was  decided  by  a  divided  court  that  she  could  not, 
but  vvB  are  not  impressed  ;7ith  the  reasoning  upon  \/liich  that  decision  was 
based.     It  is  conceded  that  at  the  common  lav;  the  hushand  mi^t  maintain 
an  action  for   the  alienation  of  the  affections  of  a  wife,  Ijut  it  is  said 
that  the  wife's  right  to  the  society  of  the  husband  is  different  in  degree 
ard  value,  acd,   in  a  long  opinion,   the  court  under talses  to  substantiate 
this  proposition.     Tha  leasons  given  are  too  numerous   to  set  forth  in  this 
opinion,  but  we  thinlc  they  are  unsatisfactory-  and  illogical.     The  decision 
is  also  Tjased  vrpon  the  fact  tliat  at  the  common  law  the  \i;ife  had  no  prop- 
erty in  the  consortium  of  her  hushanci.,  and  that  her  position  as  a  wife 
precluded  her  from  bringing  the  action.     An  attempt  is  made  in  this   case 
to  distinguish  the  cases   thz.t  hold  that  tlie  wife  at  oommon  law  liad  a  right 
to  bring  this  action,  Tmt  \!Q  tliini-:  tlie  s-ttenipt  was  unsuccessful;   and  there 
are  other  cases  maintaining  the  ssine  view.     EOvvever.    tlie  case  of  :;illi?m3 
V.  V/iliiams,  20  Colo,  51   (57  Pac.  614),  scuarely  decides  the  proposition 
tlie  other  vjay,   and  shows  tlaat  the  doctrine  is   really  based  upon  the  ajocient 
idea  of  the  couiparative  inferiority  of  the  'Afe,     E-ie  court  in  that  case 
said: 

"LIr.  Justice  Blaclcstom,  who  nrote  150  yeai-s  ago,   gave  as  a  reason 
for  denying  the  v7ife's  right  of  cction  in  cases  of  tl-is   I-dnd  the  follov.'ing: 
'Eie  inferior  liatli  no  IdLnd  of  property  in  tlie  compajuy,   oaxe,   or  assis  tiiice 
of  the  superior,   as   tlie  superior  is  held  to  ::£,ve  in  those  of  the  inferior, 
and  therefore  the  inferior  ca;.  suffer  :j.o  I.-,rc  o-:  injurj'-. '     S  Bl.  Gcanm.  142. 


170. 

2hi5  language  sgoibs  strange   in  the  present  age,  however  familiar  it  may 
have  teen  din-ing  the  last  century." 

Aiid  tlE  court  then  quotes  "barren  v,  Uarren,   89  Ilich.  127   (50  N.  U. 
844),   \vhere  it   is  said: 

"The  viTife  io  entitled  to  tho  cocietjr,  protection,  aad  support  of  her 
hustand  as  certainly,  under   the  la>.\f,   arid  "by  moral  right,  as  he   is  to  her 
society  aai  services  in  his  household." 

Foot  V.  Card,   58  Conn.   1    (10  Atl.  1027,   2S  Am.  St     Rep.   258),   is 
also  quoted,  \^here  tlE  court  said: 

•So  far  forth  as  the  husband  is  coucernod,  from  tii-ne  imnemorial  tlie 
las?  has  regarded  his  right   to   Cie  conjugal  affection  and  society  of  his 
wife  as  a  valuable  property,  aixl  lias  compelled  the  man  who  has  injured  it 
to  make  compensation.     Whatever  inatjualitiws  of  ri^it  as  to  property  may 
result  from  the  marriage  contract,  huabaixl  and  \7ife  are  equal   in  rights 
in  one  respect,  namely,   each  orjes  to  the  other  th^  fullest  possible  meas- 
ure of  conjugal  affection  and  socioty.     The  husband  owes  to  the  v/ife  all 
tiiat  the  wife  owes  to  him.     Upon  principle,  this  ri^t  in  the  v/ife  is 
equally  valuable  ti)  her,  as  property,     as  is  tl-^at  of  tlie  husbaiid  to  him. 
Her  ri^t  being  tiB  sa£ce  as  his   in  kind,  degree,  and  salue,   there  would 
seoa  to  be  no  valid  reason  vAiy  the  la\/  should,  decy  to  her  the  redress 
which  it  affords  to  him." 

Shis   reasoning,    it  seems   to  as,    is  more  in  conformity  ^7ith  modern 
thought  on  the  subject  of  tho  marital  relations  e:cistii3g  between  husband 
and  wife. 

See,  also,   Bennett  v.  Beanett,    116  H-  Y.   584    (23  N-    E.  17);  Van  Aruam 

V.  Ayers,   67  Barb.   544;  Haynes  v.  Howl in,   129  Ind.   581    (29  N.  E  389,   28 

Am.  St.  Rep.   213;  Lynch  v.   Kxiif^iit,   9  H.  L.   Gas.  577;  V/estlaJce  v.  V/estlalE, 
34  Ohio  St.   621    (32  Am.   Rep.   397). 

But,  however  it  may  hav6  been  at  the  common  law,    the  trend   of  judi- 
cial opinion  in  this  country  has  been  in  favor  of  extending  rijits  of  this 
k±Qd  to   Ihe  wife,   a:id  it  seeas  to  ;ie  tl^at    the  right  is  placed  beyond  a 
peradveature  by  oinr  own  statutes.     V/e  do  not  think  that   the  cases  decided 
by  this  court,    vhich  are  cited  by  the  appellant,   bear  upon  this  question. 
•I!r-e  legislature   of  this    state  has,   from  tiris   to  time,  plainly  sought" to 
remove  disabilities  of  this  character  from  married  v/oraen,  and  Sec.  1408, 
1  Hill's  Code    (Bal.  Code,  Sec,   4502),  provides  that 

"Every  married  person  shall  l-sereafter  have  tilB  same  right  axd  liberty 
to  acquire,  hold,   enjoy,   and  dispose  of  ©very  species  of  property,   and  to 
sue  and  be  sued  as  if  te  or  sl:£  \7Qre  unmarried." 

It  would  seem  as  if  tliis  statute  was  xrAry  nearlj'  conclusive  of  this 
pt^stion,  but,    if  not,  Sec.   1409   (Bal.  Code,  Sec.  4505)  makes   it  absolute- 
ly so.      That  section  provides  that 

"All  laws  which  impose  or  recognize  civil  difabilitics  upon  a  wife, 
\Viiich  axe  not  imposed  or  recognized  as   e:cistii:g  as  to  the  husband,   are 


171. 

hereby  abolisliod,  and  Tor  any  unjust  usurpatio-i  of  her  aatui-al  or  prop- 
erty rights  she  shall  have   Gie  same  rij;ht  to  appeal  in  her  own  iiodividual 
aariie  to   the  courts  of   law  or  onuity  for  rec-ress  and  protection   that   the 
husband  has;" 

Uli  it  vail  "be  observed   that  all   the  ei'xeption  that  there  is   to   this 
S'^eeping  law  is  made  in  a  proviso  to  Sec.  1409,   to  this  effect: 

"Provided  always,   that  notning  in  this  chapter  shall  be  construed   to 
confer  upon  the  wife  any  right  to  vote  or  hold  office,   e::cept  as  etherise 
provided  by  la^lf." 

And  an  investigation  of    the  statutes  in  relation  to  the  rights  of 
married  women  sho\/B  that  in  all  cases  \iiere  exceptions  are  intended  they 
are  provided  in  the  statutes.     Ihese  statutes  also  do   avray  vath  the  necess- 
ity v/hich  existed  under  the  cOiiaTion  law,   as  held  by  soae  of  the  courts 
where  the  right  r/as  sustained,   that  tlie  action  could  only  "be  maintained 
v/hen  the  husband  joined  in  it.     But  the  action  in  this  case  was  brought 
by  the  respondent  after  she  had  obtained  a  di-orce  from  her  husband,   and 
it  is   therefore  urged  by  the   appellant  that,   if  she  a-ei   had  the  right   to 
bring  this  action,   it  was  lost  when  she  sought  and  obtained  a  divorce; 
that  all  rights  v/ere   settled  by   tlie  decree  of  divorce;   and  cases  fror,i  this 
court  are  cited  to  sustain  that  contention.     But  we  do  not  t'nini:  that  the 
cases  cited  or  tlie  law  bear  upon  tlus  chsxacter  of  rights.     It  could  not, 
in  the  very  nature  of   tilings,  have  been  conte;,iplated  in  tiie  divorce  decree. 
It  is  a  damage  which  ic'  peculiar   to  the  vdfe,  which  the  husbsnd,   under  no 
rule  of  right,  could  have  any  interest  in;   and  it  would  be  a  harsh  rule 
of  law  that,  conceding  that  the  wife  had  this  right  during  cov9'>*ure, 
v/ould  deprive  her  of  the  right  -/hen  the  wrongful  acts  of  vhich  ^le  cor:;^ 
plains  created  the  noceEsit3''  for  and  caused  the  action  for  divorce..    Of 
course,   the  daiiiages  could  not  be  calcalatod  after   tiie  time  vhen  the  decree 
of  divorce  was  obtained.     Having^   tlien,   the  right  to  maintain  this   action, 
and  tliero  being  no  community, — the  coomunity  ha'.lng  been  destroyed  by  the 
decree  of  divorco, — we  need  not  concern  ourselves  about  the  proposition 
that  tlie  damages  v;lien  secured  -all  be  coriii-unity  property.     The  judgj^nt 
S9ttle£  tlie  question  as  to  the  o-vnarship  of  the  amovmt  secured  for  daiTiages 
This  answers  the  d.ernurrer  upon  both  grounds,  viz.,   that  the  complaint  did 
not  state  facts   svifficient  to-^onotiti\to  a  cause  of  action,  and  that  tl-^ 
husband  v/as  a  necessary  party  plaintiff;   and  also   the  error  alleged  in 
overruling  the  notion  for  a  non-suit. 

It  is   alleged  that  the  court   erred  in  sdnitting  in  evidence  letters 
v;ritten  by  tlie  husband.  Beach,  to  the  respondent  during  coverture,   for  the 
purpose  of  sho\.lng  the  affection  of   the  husbc'-nd  tov.ards   the  wife,     V/e 
tliink,  under  the  circxmstances  of  t".ais  case,  that  the  letters  v/ere  admiss- 
ible, axf.  the  testimony  \J3£   as  conpetent  as  any  other  testimony  showing  the 
relations  between  the  husbaixL  and  .."ife,   and  they  certainly  do  not  fall 
under  the  ban  of  the   statute  cited  by  the  appellant. 

It  is  also   claiiTied  t'lat   tlie   court  erred  in  e::cluding  testimony  of  the 
witness  Stull  in  i-elation   to  the  object  '.vhich  t]ie  husbard  avov.Ted  that  he 
liad  in  virriting  Qie  letters.     We  thinlc  this    testimony  wac  properly  excluded, 
•and  that  it   falls  under  the  head  of  salf-soiving  testi.r.ony.  .    Oie  appellant 
alto  objects  to  the  following  instruction  given  by  t!ie  court: 


172. 

"Tlio  lav/  presume::   that    a  husband,  who  lives  with  and  cohabits  v/ith 
hie  wife,    she  boariag  children,    the  issue  of   such  cohabitation,    that  he 
has  all  affection  for  her;   and   this  presujTiption  continues  until  it  is   over- 
throvm  by  a  fair  preponderance  of  the   testimony  to  the  contrary." 

'.7e  are  not  prepared  to  indorse  the  pessimistic  vie%v  of  the  marriage 
relation  contended  for  by  the  appellant,   and  we  think  the  instruction  was 
correct,  and  t2hat   there  was  no  error  in  the  modification  by  the   court  of 
thi  instructions  requested  by  the  appellant. 

There  being  no  prejudicial  errors  committed  by  the  court,  the  judg- 
ment will  be  affirmed,  _ 

Anders,    Gordon  and  Reavis,  JJi,  concur. 


)    -^ 


^;     ^ 


...^^^ 


u 


173. 


GEORGE  H.   CO.;  et  al..  Respondents,  v, 
LUCY  TO.-PXIiSOn  et  al.»  Appellants. 

(39  '7ash  70,1905) 

Appeal  from  c  judsmeut  of  Vne  superior  court   for  Spotame  couuty, 
Kennaa,   J.,    entered  April  25,   1S04,  upon  findiu;?s   in  favor  ^f_the_plQin- 
tiffs,   after  a  trial  before  the  court  v/ithout  a  jury,   in  an  action  to 
'  quiet   tit le .     Af  f  irmed. . 

Fullertou,  J.-'-Ihis  is  en  action  to  quiet  title,  to  certain  lots  and 
tlocks  in  Huzzy's  acf^dition  to   the  city  of  Lpoka^ej.     The  facts   shown  by  the 
f^ofd'~ai^,^l'irEubstT.iice,   these;      On  Hovember  15,   1860,   one  Hirman  Huzzy 
mcde  a  homRsteof^g.-it-.-y  r>-,i   -  r.,aj::jfc-,3.a__c[uartGr  section  of  land,   situate  nei.r 
the  city  of  Sppl-:ane»_i-iid,^tOSQther  \4th  his  fa.-:iily,  .consisting  of  his  m-fe 
and  five  chilcLren,  tool;  up  his  residence  thereon.      On  January  6,   1886,  ilrs.^ 
Muzzy  died,   leaving  as^  one  of. the  heirs  at  1:.\/  the  appellant  Lucy  Tomplcin* 
"foa.     loathe  early  part  of  the  ye:j:  follov.-in^,' Huzzy  made  final  proofs  oiT 
his  homestead,   end  on  June  2,   1687,  received  his  final  receiver's  receipn 
therefor.     Patent  v/as  issued  on  Hay  26,   1886.     Immediately  after  receiving 
his  final  receiver's  receipt.  Muzzy  platted  a  considerahle  portion  of  the 
property  into  streets,   alleys,  lots,  and  blocte,  under  the  desisnation  of 
"Huzzy's  Addition_tp_Jpplcane  Fells;"  and,  after  dedicating  in  \a-iting  to 
the  public  use  forever  tlie    streets  and  alleys  shov.-n  thereon,  caused  the 
same  to  be  filed,  as  provided  for  by  law.     On  August  8,  1892,  Huzzy^j^  in 
consideration  of  the  sum  of  (5,000,    tii en  loaned  him  by   the  respondent^ 
ii£a2:se_jI^_Cox,  ^:ecuted_ard  delivered  to  Co::  a  mortgage  on  thclots  and    ^ 
Jblocks  in  question  in  this  action,   the   saiae  being  a  part  of   the  aduition, 
so  platted  as  above  stated,  to  secure  the  repayment  of  the  loan.     Huzzy 
.5hereaftBr_def;iiilted__iu_  the  payments  provided  for  in  the  mortgage,  and  tEe 
seme  was  foreclosed,  _ani.  theproperty  cold  on  February  6,  1894.     2he  re- 
g)ondents  purchased  the  property  at    the  sale,   receiving  a  certificate  of^ 
Vale  at  that  time  and  a  sheriff ♦s  deed  on  February  7,  1895.     Immediately  ^ 

after  the  sale  the  respondents  entered  into  possession  of    1he  property,-     ^    t-^^ 
and,   frora~8iat~tirae^dOT?ir  to  the  cominencement  of    this   action,  have  maiataia- 
ed  such  possession  to   the  exclusion  of  every  one  else,    tnd  have  paid  all 
the  taxes   that  v/ere  lav/fully  levied  and   assessed  thereon  as  the  same  matur- 
ed-'-a  period  of  more  than,  seven  years,  -_ 

After  the  death  of  his  -..-ifo,  Huzzy  believed  himself  to  be  the  c.-ner 
in  fee  of  the  homestead  property.     He  at  once  assumed  sole  end  exclusive 
dominion  and  coiitrol  over  it,  put  sudi  of  it  as  he  had  platted  into  lots 
and  blocks  on  the  market  for  sale,   and  has  sold  i^iany  of  the  lots   to  per- 
sons who  purchased  them  for  residence  and  business  purposes,   gi"ing  v/ar- 
ranty  deeds  to  such  purchasers.     In  short,   the  evidence  shows  that  Huz:;y 
not  only  claimed,  to  be  the  sole  owner  in  fee  of  the  property,   but  has  ex- 
ercised such  rights  over  it  as  one  usually  exercises  a-/er  his  own._    Of  the 
lots  sold,  many  of    them  •■vere  i.nproved  by  the  purchasers  by  the  erection 
of  costly  and  permanent  buildings,  and  the   streets   shovn  on  the  plat  v/ere 
at  once  assumed  by  the  peOj.Jle  and  city  authorities  of  the  city  of  Spokane 
to  be  public  streets,   and  have  been  used  by  the;n  ever   since  as  such.     The 


\ 


174. 

city  also  hr.s  imi:/roved  the  streets  fey  .;jr-:.diu3  them  raid  construe  tins  Eide- 
wr-l&s  thereon,  cjad  hcis  laid,   end  :t^ermitted   to  be  Ic-id,  vr.tor  mc-ins  :.nd  ^cs 
pipes  therein. 

The  appellant  Lucy  Tomplcinson  lived  with  her  fcther  on  the  homeste:ai    V 
claiiTiT'r.fte^nilielier-th  of  her  mother,  until  August,  1887,  at  viiich  time  ^ 

she  nr;riled~Tuid"v.-ent  to  the  home  of  her  husband.     Shortly  Giereafter  ste         ^ 
became  estranged  from  her  father,   end  no  longer  visited  at  his  home,  or 
permitted  hinrto^'visit  her.     Ch^  has  lired.  ho^/ever.   ever  since  her  m;-!-- 
'riage,  either  in  the  city  of  Spolcoie  or  within  five  miles  therefrom,  and 
imev;  that   the  homestead  property  wns  bein^-  disposed  of  by  her  f  ther  to 
persons  v/no  pfirchased  on  the   faith  of  his   title,  ...nd  kne"'  at  all  times  of 
the  improvements   tll:^t  '.Gre  bein^  made  on  the  property.     It  v;as  shovu  tlx.t, 
as  e-a-ly  as  16S1,   she   tool-:  tiie  advice  of  counsel  as    to  her  interests  in 
the  property,  but  took  no  active  ste";:>s  to  laalie  luicvn  her  clcims  until   some- 
time in  1896,  ^vhen  she  e:-ecnted  deeds  to  certain  parts  of  the  property  to"" 
her  co-appell-nts  hei-Qiu,     hich  were  xiled  and  placed  of  record  without  de- 
livery.    It  is  conceded,  hovJever,  that  th.es6  deeds  were  not  executed  for 
the  purpose  of  convejan^  such  title  as  die  claimed  -  nd  possessed  to  the 
Sratitees  ncjued  therein,  but  for  the  purpose  of  clouding  the  title,  and  com- 
pellins  persons  claiming  through Jiuzzy  to  brin^;  actions  against  her. 

On  tlie  fore^oins  facts,    gie  trial  court  held  that  the  r^llr^at  Lucy 
Toraplrinson,   as  heir  tojier  motlier^  r.cqiTirod  ti tie _.to.^-ji_ undivided  one^i^tBnth 
interest  In"  the" homestead  property,   on  dio  issuance  of  the  patent  by  ^he      ^-^■<-^. 
government  "to  her  "faJier  ,"''but  that    slae  had  been  dj.voEt_ed  of  such  title  by         ^ — V 
Qie  operation  of  "the  statute  of  limitations.TjicT  was  no-v  estopped  from  ^ 

asserting  ny  interest  therein.     A  decree  v'as  thereupon  entered  quietin;^'  * 

in  the  respondents  the  title  to  the  property  described,  from  ••hich  decree 
she  and  her  codefendjuits  appeal. 

Under  the  rule   ~::aaouncjd  by  this   coux-t  in  the  case  of  Ahem  v,  Aliem, 
31  V/ash.  354,   71  Pac.   1023,    96  i^.  St.   912,    the   appellant  Tompkiuson  un- 
doubtedly acquired,   as  heir   to  her  mother,  an  undivided  one-tenth  interest 
in  the  land  in  dispute,   on  the  acquisition  of  the  le^al  title   tlureto  by 
her  father,    so    tla^t  th-o  sole  question  to  be  dotei-iained  here  is,  hr.s  she 
lost  tliat  interest  by  failing  to  assert  it  v/ithin  the  statute  of  limitat- 
ions?    It  seems  to  us   tiiere  can  be  but   little  question  that   die  hr.s.     Her 
counsel  do  not  deny  that  one  tenant  in  co.ruaon  may  hold  the  ccnraon  property 
adversely  to  another,   even  thougla  the  cotenr.:ite  bear  the  relationsliip  of 
father  and  daughter,  but   th^y  contend  that  possession  by  Oxie  coteurnt  does 
not  become  adverse  to  another  until  thr.t  other  is  d-^finitely  notified  by 
the  cotenrjit  iu  possession  that  he  disputes  ant.  disavows  ony  claim  of  in- 
terest mcdc  by  V:£.  other;    aid  coiosel  argue  th:..t   die  facts  f  11   to  ^'.ss-i 
that  ".uy  such  notif  ic  .tion  \.'as  given  in  this   case.     But  v;e  think  counsel 
make  too  brocjd  a  st<_tement  of  the    role. 

As  the  possession  of  land,  held  by  a  coa.ion  title  by  one  tenant   in 
common,  does  not  imj.:ly  hostility,  as  does  possession  by  a  stranger   to  tlie 
title,    stronger  evidence  is  required  to  sho\/   an  advei  se  holding  by  a  tenrait 
in  common  tlcn  by  a  str-oiger,  but   the  evidence  need  not  (flfier  in  'ia.nd. 
Actual  \'ei'bal  or  vnritten  notice  is   not  necess.  ry  to  st'^it  the  statute  run- 
ning in  such   a  case.     If  there  be  out^.-ard  acts  of  ei-clusivo  o  -nership  by 


V 


y^j. 


^ 


;:^p^.1^ 


V 


175. 


the  teaant   in  possoSsiou,   of   tuch  a  laaturo  as  to  preclude   ilie  idea  of    a 
joint  ovsuorsliip,  'brouj.-ht  home  to  the  cotonaiit,   or  of  so   open  auc.  public 
a  character  that  a  reasonable  nan  •vould  discover  it,   it  is  sufficient. 
1  Cyc.   1071,   et  ceq.     The  facts  in   fee  case  before  us  wor  think  shov;  con- 
clusively that  the  possoscion  of  Hirain  Muzzy  of  the  homestead,  property  \/as 
at  all  times  adverse  to   the  appellant.     He  not  only  had  and  maintained  ex- 
clusive control  and  dominion  over  it   as  lonj  as  he  retained   tie   titls, 
but  his  outv;ard  acts  -vath  reference  thereto  —ere  inconsistent  ^dth  any 
other  idea  th?n  that  of  sole  o^dership.     •."e  thinlc,   too,   they  ^/ere  of  suf- 
ficient publicitj--  and  notoriety   to  put  the  appellant  upon  notice  of  his 
claim.     It  would  be  difficul!:  to  :;ive  more  publicity  to  one's  claim  of 
ovmership  and  title  to  real  property  than  to  plat  the  sane  into  lots  and 
blocks  as  an  aac'dtion  to  a  city,  and  sell   and  convey  such  lots  by  deeds  of 
warranty . 

But  if  the  general  stc  tute  of  limitations  could  not  be  successfully 
pleaded,  the  respondents  can  claim  title  under  sections  5505  ard  5504  of 
the  code.  Iheir  entry  into  possession  under  the  title  acquired  at  tlis 
foreclosure  sale  was  sufficiently  adverse  to  start  the  statv-te  running'. 
Cain  V.  Furlow,  47  Ga.  674.  Am?,  tlieir  possession  and  payment  of  tazces 
for  a  period  of  seven  years  conferred  titla  on  then  under  the  sections 
cited.     Philadelphia  Lit^.  c:  Trust  Co.  v.  lalmer,   32  V/ash.  455,   7D  Pac.501. 

V/'e  conclude  that   the  respondents  have   ti  tie   to  the  property  in 
question,   and  are  entitled  to  heve   s-xh    title   quieted  in  themselves. 

She  judgment  appealed  from  vviil   therefore   stand  affirmed. 

Itount,  0.  J.,  Dunbar,    and  Hadley,   JJ.,    concur. 

Rudkin,  Root,  end.  Cro-./,   JJ.,   took  no  part. 


.^H^:c.t^^-<^i^'^^^ 


C 


V 


176. 


BEDAX  Qt  vex.  V.   SAKE. 

(Supreme  Court  of   Idaho,   June  28,  1904.) 
(10  Idaho,   270). 

Sullivan,   C.    J.,  diccentins 

Appeal  from  District  Court,  Ada  County;    Geo.  H.   Ste-.vart,   Jud^o. 

Action  by  CharloP  Bedal  and  wife  against  Harry  Sake.     Judjment  for 
defel^dairtT-aiflriJl^rErtiffE  appeal.     Affirmed^_  ^ 

Stockslaser,  J — The  plaintiffs  filed  their  amended  complaint,    to 
wMch  defendant  demm-red.      The  demurrer  was  sustained,  and,  plaintiffs 
refusing  to  furtliGr  plead,   judgment  was  ordered  entered  in  favor  of  de- 
fendant for  costs. 

The  amenied  complaint  alleges   -'that  plaintiffs,    Cloarles  Bedal  and 
Ilasgie  Bedal,  ever  siJxe  the  20th  day  of  "larch,   1900,  have  been  husband 
and  \7ife;    that   the:  plaintiff  Ilaggie  Bedal  and  the  defendant,  Harry  Saloe, 
are  the  joint  owners   and  tenants   in  common  of  80  acres  of   land,  in  Ada 
county";   alleges  the  marriage  of  Haggle  Bedal  and  Harry  Sake  in  the  stats 
of  Iowa  in  the  year  1872,     'and  thereafter  lived  together  as  husband  and 
wife  until  January,   1895;    that  in  the  month  of  March,    1899,   said  Ll^gie 
Bedal  commenced  a  suit  £.gainEt  said  Harry  Sake  for  a  divorce  in  the  cir- 
cuit court  of   the  state  of  Oregon,    in  the  count;'-  of  Clacismas,   and  in  the 
month  of  Hay,   1899,   a  decree  of  divorce  -.vas  duly  allayed  and  entered,   *  * 
*  *  and  that  said  decree   of  divorce   is  no-.;  in  full  force  and  effect;    *  *  * 
that  no  mention  '.;aE  made  in  said  plaintiff's  complaint  for  divorce  of  any 
property   of  any  kind  cr  description  whatever,  nor  was  sny  property  rights 
of  said  parties  mentioned  in  any  of  the  proceeding's,  nor  did  said  court 
adjudge  or   decree  any  property  rights,   or  gisT-e  plaintiff  any  alimony,    or 
require  said  Hariy  Sake  to  give  or  pay   to  plaintiff  in  that  action  any 
money  or  property.   *  *  *   The   only  effect  of  the  decree  being   to  dissolve 
the  marriage  relation.    *  ♦  *   That  there  never  has  been  any  settlement  or 
agreement  of  any  land  between  said  plaintiff  Haggis  Bedal  and  defendant, 
Harry  Sake,   of  any  property  rights  existing  between  them,   nor  has  said 
plaintiff  Haggle  Bedal,   by  any  act  on  her  part,  waived  her  interest  in  and 
to  the  aforesaid  community  property;    tliat   iiiQ  said  circuit  court  of   Oregon 
had  full  jurisdiction  at  the   time  said  divorce  decree  was  rendered  of  tiio 
said  parties  and  subject-matter  in  saad  divorce  proceedings;    tliat  in  said 
divorce  proceedings  personal  service  was  not  had  upon  said  defendant, 
Harry  Sake,  but  service  v/as  duly  had  by  publication  in  compliance  v;ith  the 
laws  of   the  state  of  Oregon  relative  to   service  by  publication  in  divorce 
proceedings;   that  at  the  date  of  said  decree  of  divorce  said  plaintiff 
Maggie  Bedal  and  sail  defendant,  Harry  Sake,  were,   now  are,   and  ever  since 
said  date  of  said  decree  joint  owners  and  tenants   in  common  of  all  of  the 
aforesadd.  real  property,    and  the  whole   thereof,  was  acquired,  purcliased, 
and   taJon  up  from  the  United  States  governcient  with  tie  efforts,    labor  and 
expense  of  both  plaintiff  Haggle  Bedal  aad  defendant,   Harry  Sake,  during 
the  time  they  were  living  together  as  husband  axid  -rife;    that  on  or  about 
October  4,   1895,  with  tlie  consent  and  request  of  said,  defendant,  Harry 


177.       , 

Sake,    said  plaintiff  llasc:^  Bedal  filed  far  record  a  v^ritten  declaration 
of  hoiTDCtend  upon  the  aforocaid  rsal  property  in  recorder's  offico  of  Ada 
county;   caid  declai'ation  was  duly  signed  and  acKnowl edged  ty  said  Vi3L^;^ie 
Bedj.1   in  the  nsniQ  of  Ilaggie  SakQ  v/ho  at  the  time  was   the  la\/ful  wife  of 
said  Harry  Sake,   and  was  liv5xis  and  res  id  in;:;;  upon  said  real  property  v/ith 
said  defendant,   as  their  home  and  place  of  residence."     The  fourth  alle- 
gation is   "that  plaintiffs  are  informed  t^t^a  believe,   and  therefore  allegOj 
that  Llasjgie  Bodal  is  now  the   owner  of,   aii).  entitled  to  an  undivided  one- 
lialf  pai-t  or   interest  in  ard  to  the  aforesaid  real  estate,   and  ttiat  Harry 
Ealiie  is  now  the   avmor  also  of  an  undivided  one-lialf  part  or   interest  in 
said  real  estate;   that  def er.dv'jnt ,  Harry  Sake,  now  is,  and  ever  since  on 
or  about  the  30th  day   of  January,   1895,  has  been,    in  the  possession  of 
said  property,  and  docs  ani  has  ever  circc  said  date  refused  to  allov;  said 
plaintiff  Haggle  Bedal  to  enter  upon,   take  possession,    occupy,    or  use  said 
real  estate,   or  aiiy  part  tl£.reof,   althougli  sla  has  requested  and  demanded 
said  defendant  to  allow  her  to  visq  said  real  estate,  and  has  asserted  her 
rights   to  her  interest  in  said  property  by  claiming  and  notifying  said  de- 
fendant as  to  the  saKe;   that  she  has  never  made  conveyance  of  her  said  in- 
terest  in  said  property  to   any  one;    that  there  are  no  lions  or  incumbran- 
ces on  said  property  appearing  of  record,   or   to   the  toowledge  of  plain- 
tiffs,  and   that  no  persons  other  than  the  said  plaintiff  Ilaggie  Bedal  and 
said  defendant  are   interested  in  said  premises  as   ov.ners  or  otherrase; 
tl:iat  plaintiffs  are  informed  and  believe,  ai:d  therefore  allege,   that  said 
premises  produce  each  year  a  crop  of   the  value  of  ^500  net  over  and  above 
all  expenses  nccessaiy  for  maintaining  said  premises  aid.  the  raising  of 
said  crop,   and  that  said  premises  have  prcdicod  said  crops  each  year  since 
on  or  about   Zie  30th  day  of  January,    1895."     Then  follows  a  prayer  for 
judgment  for  a  partition  of  tla  said  real  property  according  to   the  re- 
spective ri^its  of  t2:ie  parties  afarcsaid,   or,   if  a  partition  cannot  bo 
had  -vvithout  material  injury'  to  those  rights,  then  for  a  sale  of  said  prem- 
ises ard  a  division  of  the  proceeds       The  demurrer  to  tMs  complaint  is  on 
two  grounds.      "(1)   CEiat  the   complaint  does  not  state  facts  sufficient    to 
constitute  a  cause  of  actJ.on.      (2)   E-^t   the  said  complaint  is  ambiguous,^ 
unintelligible,  ard  uncertain,   in  this:      that  paragraph  5  of  said  amended 
complaint,   commencing  at  tho  word   'tliat,'    in  the  fourteenth  line  of  said 
paragraph,    to  arxL   including  the  v/ord   'Sate,»   in  the   thirtieth  line  of  said 
paragraph,    is  a  sin:5le  contence,    in  which  no  positive  allegation  of  fact 
is  made,   in  that  several  allegations  are  attempted  to  be  made  in  said  sen- 
tence, caid  allegations  being  connected  v/ith  each  other  by  the  conjunctions 
'or'   and   'nor',   and  tlxjt  it  cbes  not  appear  therefrom  v/hat  course  or  action 
was  taken  with  reference  to  the  matters  ani  things  therein  referred  to, 
and  as  to  what  v/as  and  was  not  done  with  reference  to  the  matters  and 
tilings  and  by  the  parties  therein  referred  to,  and  that  it  does  not  appear 
therefrom  upon  what   theory  the  plaintiffs  rely  as  to  the  matters  and 
things  tisercin  stated;    t!'^.t   in  tr£   fifth  paragraph  of  said   amended  com- 
plaint,   in  tlv   ninth  and    tenth  lines  thereof,    that   the  following  allega- 
tion,   'that  said  Kaggis  Bedal  has  never  made  a  valid  conveyance  of  her 
said  interest  in  her  said,  real  property  to  any  one, '    is  amb.iguous  and  un- 
certain,   in  this;     that  the   inference  is   that  a  conveyance  of  some  kind 
or  character  was  made  by  said  alleged  Ilaggie  Bedal   to  soiao  person  or  per- 
sons who  may  or  may  not  Inve  an  interest   in  this   litigation,    and  vho  may 
be  proper  ard  necessaxy  parties,    either  plaintiffs  or  defendants,  herein.; 
and   that  sail  language"  implies  that  a  conveyance  was  made  by  plaintiff, 
said  alleged  :.Iaggie  Bedal,   either  to  this  defendant  or  some  otlier  person 


178. 

or  persons,   leaving. said  allegation  ambisuous  and  uncertain  as  to  the  in- 
tent ard  moaning  of  the  plaintiffs." 

We  have  read  tie  brief  of  counsel  for  appellants,  together  with  the 
authorities  cited,  with  a  great  deal  of  interest  and  care.     He  insists 
that  notwithstardirjg   the   fact  that   the  plaintiff  IlagglG  Bedal  left  her 
hushand  and  hons   in  Ada  county,    Idaho,   in  the  montli   of  January,   1895,  went 
to  the  state  of  Oregon,   and   in  the  month  of  Llay,  1899,   obtained  a  decree 
of  divorce  fron  her  husband,  acd  on  the  20th  day  of  Llarch,   1900,  became 
the  wife  of  her  coplaintiff,  Charles  Bedal,    she   is  entitled  to  recover 
her  interest  in  the  property  left  in  Idaho  vhon  she  took  up  her  residence 
in  Oregon.     The   laws  of  Idaho  deal  very  fairly  \7ith  the  v/ife  in  regard  to 
community  property.-    Certainly  no  fair-minded  person  rculd  say  that  the 
wife  should  not  share  equally  in  the  accumulation  of  a  lifetime  spent  in 
the  acquisition  of  property,  and  that  is  v/hat  our  statute  gives   to  the 
wife.     Cor  divorce  laws  are  certainly  as  liberal  as  could  be  desired. 
The  grounds  upon  which  a  c'.ivorcG  may  be  grsnted  in  this  state  are  as  num- 
erous as  any  of  our  sister  states.     Hence,  under  ordinary  circumstances 
aui-l  conditions,   it  is  unnecessary  for  any  one  to  seek  another  forum  in 
which  to  prosecute  an  action  for  divorce.     The  plaintiff  in  this  action, 
for  como  reason  best  laiova  to  herself,   sav/  fit  to  leave   this   state  and 
prosecute  her  action  in  Oregon,  certainly  laaowing  that  a  division  of  the 
community  property  could  not  be  decreed  by  the-  courts  of  that  state  on  a 
service  by  publication.     V/e  are  not  informed  by  the  complaint  upon  what 
ground  or  grounds  she  obtained  her  divorce,  anT.  it   is  immaterial  and  un- 
important,  so  far  as  her  right  to  recover  in  this  action  is  concerned. 
Suffice   it  to  say,  hov;ever,   that  it  is  liard  to  conceive  of  an  e::cuse  for 
her  to  leave  tliis  state,    or  even  Ada  county,   to  prosecute  her  action^     If 
her  charge  was  extreme  cruelty,   or  if  she  felt  sbe  was  in  danger  of  bodily 
harm  from  her  husband  in  case  she  commenced  her  action,   on  a  proper  show- 
ing, the  court  would  have  protected  her  from  any  danger  from  her  husband, 
and  required  the  defendant  to  furnish  her  ',lth  means  of  support  during^ 
the  pendency  of  the  action.     On  the  final  deteraination  the  court  could 
and  certainly  vv-ould  have  rendered  such  a  decree  as  to  do  equal  justice  to 
both  parties  to  the  controversy,  thus  ending  tte  differences  between  them 
for  all  time.    As  we  view  it,   it  was  the  duty  of  the  plaintiff  to  commence 
her  action  in  the  jurisdiction  where  the  property  was  situated,  procure 
personal  service  on  the  defendant,  and  thus  acquire  jurisdiction  of  the 
property,  and,   in  the  disposition  of  the  case,  place  the  court  in  a  posi- 
tion to  settlo  th3ir  marital  relations   as  v;ell  as  their  property  rights. 
The  plaintiff  I!aggie  Bedal  in  this  action  does  not  enlighten  the  court  as 
to  her  reason  for  seeking  a  dissolution  of  the  marital  relations  in  an- 
other forumfr  starding  on  the  naked  legal  proposition  that  the  property 
once  held  by  reason  of  her  marriage  relations  with  defendant  remained  hers 
until  she  disposed  of  it,   or  until  five  years  after  her  decree  x^as  granted 
in  Oregon,   vhen  it   is  practically  conceded  that  the   statute  of  limitations 
would  run  against  an  action  of   this  character  unless  she   asserted  her 
rijit  to  her  interest  in  the  community  property. 

Ihe  questions  presented  to  us  by  this   appeal  are  new  in  this   juris- 
diction.    \7e  find  no  case,    either  in  territorial  times  or   since  statehood, 
^Therein  these  particular  questions  have  been  before  this  court.     We  have 
examined  the  authorities  cited  by  appellant,   acd  many  others,  bearing  on 
the  questions   involved,  but  find  no  one  ;^ere  the  facts  have  been  similar. 


179. 

In  all  our  iuvesti:iation.,  v;e  have  teeu  uiiable  to  find  a  case  viiere  the 
plaintiff  left  the  ho.ne  voluntarily,    souglit  redrecs  in  aiother  forum, 
procured  a  decree  of  divorce,   and   toolc  unto  herself  another  hus^band;   there- 
by disEolvins  tlic  marital  com.nunity  of  herself  and  her  former  husband,   aod 
creating  a  new  one  vath  her  present  husb/.-nd,  viho  is  coplaintiff  in  this 
proceeding. 

We  are  not  prepared  to  saj/  that  if  personal  service  had  been  made  on 
defendant  in  the  state  of  Oregon,   or  if  he  had  appeared  and  contested  the 
action  of  his  vdfe  for  divorce  in  that   stdte,   that  court  would  not  have 
acquired  jviri£.diction  of  the  co.7imunity  property  in  tide  state.     But   it  is 
alleged  in  the  complaint   that    tlie  service  was  "by  publication,    end  it  is 
not  alleged  that  the  defendant  aFi>eajed  to  contest  tloe  action.     Hence  v/e 
conclude   that  court  did  not  acquire  jurisdiction  of  tliG  coiranunity  property. 
The  statute  of  this   state  only  gives  the  court  power  to  dispose  of  com- 
munity property  after  the  divorce  is  grenteed.     Indeed,   it  acquires  its 
power  from  this  source  alone.     The  hus>on.d  controls   the  cormiinity  proper- 
ty up  until  the  very  hour  of   tlie  dissolution  of  the  marriage  relation. 
This   being  true,   the  question  arises,  how  can  the  courts  of   this  state  ac- 
quire jurisdiction  of  v.iiat  was  cornaunity  property  at   least  up  until  the 
time  the  divorce  v/as  granted  by  tlie  Oregon  court,  even  though  it  be  true 
that   that  court  v/as  not  as  feed  to,    aid  made  no  attempt  to,    settle  the  prop- 
erty rights  between  the  parties  as  husbjnd  and  wife?     It  is  presumed  from 
the  coraplaint,   and  tlie  demurrer  concedes  it,    that  the  plaintiff  Haggle 
Bedal  in  this  action,   and  Ilaggie  Sake  in  that  action,   got  all  she  asked 
for,  \Aiich  seemed  to   satisfy  her  until  tl'jree  years  and  more  after  she  had 
assumed  a  new  co'nmunity,   aiid  entered  into  a  life  contract  with  another 
husband.     As  we  see  it",   the  courtb  of  this  state  are  powerless   to  dispose 
of  this   property  as  co;.'iaunit3r  property  ■under  the  e;:isting  circumstances. 
The  courts  of  tliic  state  liavs  not  been  called  upon  to  dissolve  the  marital 
relations  existing  bet^/eeii  Harry  Sake  and  Maggie  Sake,    aid,   if  our  conclu- 
sion is  correct,   tliat  our  courts  can  only  acquire  jurisdiction  in  an  ac- 
tion of   tliis  character- that  is,    for  the  purpose  of  disposing  of  the  com- 
munity property — by  the  entire  divorce  proceedings  bei:ig  before  the  courts 
of  this  state,  then  our  courts  are  powerless   to  grant  t>je  relief  demane.ed 
V/e  think  our  statutory  provision  is   in  the  interest  of  good  morals  and 
public  policy,    aid  any  o  tiier  rule  would  be  dangerous    to  the  welfare  of 
the  citizens  of  our  state. 

Tbe  plaintiff  llaggie  Bedal  says  in  her  complsint  thst   she  has  made 
frequent  demands  for   the  possession  of  sad  the   ri,glit   to  occupy  her  inter- 
est  in  the  property  settled  upon  and  improved  by  herself   and  former  hus- 
band.    She  does  not   say  when  or  how  she  made   these  demands,  and  counsel 
for  respondent  insist  in  their  brief  tliat  the  first  information  defendant 
had  of  her  claims"  "S-as." -hen  the  surxions   .'as  served  u^^on  him.     '  e  do  not 
tiink  tluE  a  matter  of  great  importance,    onl^^   as   it  mi^ht   shov;  tls  good 
faith  of  the  plaintiff  liaggie  Bedal.     Certain  it  is    that    she  had  lived 
separate  and  apart  from  her  former  husband  almost  nine  years  before  she 
coroiaenced  this  action,   and  ^-e  are  not   inforr.ed  by  the  complaint  \,hy  it 
v.-as  not  commenced  at  an  earlier  date.      It  -.-ould  seeim  t!x.t  after  she  had 
lived  av;ay  from  her  former  husband  and  home  for   almost  nine  years,    and 
hcd  takan  uiito  herself  another  husband,     .ho  must  necessarily  have  enter- 
ed into  a  contract   to  support  and  protect  her  until  death  ended  the  con- 


180. 

tract,   or  another  decree,   cmd  three  years  and  more  hcjd  passed  under  this 
new  contract,   tl-e  defendant  hcd  reason  to  believe  thct  hie   "labor  alone' 
on  the  80  acres  of  lard    -culd  be  left   to  him  and  hie  children,   if  he  had 
any,  for  hie  declining  years.      Tliic  \vould  certainly  be  the  equitable  viev; 
to  take  of  it.     It  may  be  that  tlio  hucbaud  was  entirely  to  blame  for  the 
separation,     V/e  l£no\/ nothing;  of   this,    or  vhat  their  troubles  -..Bre .     But 
as  v;e  have  heretofore  said,  the  courts  of  tins  state  -/ere  open  to  her, 
and  \jould  liave  provided  lier  -..Itli  all  the  protection  slie  needed,  and  re- 
quired the  defendcint  to   support  her  and  provide  her  v^rith  means  -./ith  \T4iich 
to  employ  counsel  and  conduct  Iier  case   t]-irou3h  the  court  of   last  resort, 
if  she  desired  to  do  so.     It  is  a  matter  of  common  information,   not  only 
in  this  state,  but   throughout   the  Union,    tliat  courts  v/ill  al\;ays  see 
that  the  wife  is  properly  represented  and  protected  in  the  trial  of  her 
case;  and,  \hen  the  final  decree  is  entered,   she  usually  has  her  full 
shcire  of  tha  property,   if  there  is  any. 

V/e  v/ill  nov;  briefly  revie--'  the  authorities  cited  by  appellants   in 
support  df  their  contention  tliat  under  the  complaint   in  this  case   the 
plaintiffs   should  recover  in  this   action       Counsel  says:      "The  primary 
cfuestion  involved  in  this   case  is  \/liethar  either  party  to  the  decree  of 
divorce  may  thereafter  maintain  an  action  for  a  partition  of  an  undivided 
one-half  interest   in  the   real  property  acquired  during  their  mcxria^e, 
vhen  the  pleadings  and  decree  in  said  divorce  piroceedings  did  not  refer 
to  or  determine  any  disposition  of  any  property,   and  svc'h  decree  v/as 
recdered  in  a  state  other  than  --.here  such  property  is  situated."     Ihis 
v/e  conceive  to  be  the   important  question,    and  the  one  upon  ^Jiich  this 
case  must  be  reviev.'Sd  in  the  light  of  our   statute. 

Hie  first  authority  to  \/liich  our  attention  is  called  in  support  of 
this  cQitention  is  De  Godey  v-    Godey,    3S  Cal.    157.      Tlie  follo-./ins  facts 
are  stated  in  the  opinion:      "It  appears  by  the  allegations  of  the  bill 
that  the  parties  v.-ere  married  in  1862,   and  that  for  some  years  there- 
after,  and  up  to  May  20,  1869,    tliey  vBre  la\/ful  husband  and  \/ife.      On 
the  last-mentioned  day  the  decree  of  divorce  -.."as  entered,  divorcing  the 
parties,   in  the  Si::teenth  Judicial  District  Court,  for   the   county  of 
Kern.     Die  appellant   instituted  the  action  in  that  court,   ttiousla  at  the 
time  of   its  commencement  the  parties   in  fact  resided  in  the  county  of 
Santa  Barbara,    in  the  Seventeenth  Judicial  District.     He  fraduleatly 
brought  the  respondent  into  ICern  county  for   Gie  purpose  of  having  the 
process  served  upon  her,   and,    tkiQ  service  havin^-  been  effected,  he  mis- 
informed her  Of  the  purport  of  the  papers  so  served  upon  her,   and,    ./ith 
a  vie^/  to  conceal  their   true  nature  from  her,  he,    as  soon  as   the  officer 
making  the   service  load  dep^-rted,  violently  tool:  them  from  her  possession 
end  destroyed  them.     He  thereafter  returned  the  respondent  to  her  home, 
in  Santa  Barbara  county,  and  there  Iccpt  her  restrained  of  her  liberty, 
and  secluded  from  all  intercourse  v/ith  her  frieiads,   ai:d-  in  i.'^noraice  of 
the  pealeacy  of  the  action,    end  thereby  deprived,    of  course,    of  anjr  op- 
portunity to  maiie  her  defense,   though  she  had  a  good  one  on  the  merits.' 
Can  it  ba  seriously  contended  that   tlie   facts   in  this   case  have  any  bear- 
ing on  the  issues   involved  in  tlia  case  at  bar?     It    /ould^have  been  a       _ 
groBs   injustice  to  the  vafe  to  have  permitted  the  husband   to  talce  the  ac- 
vaiiage  of  her  in  the  manner  there  attempted,  and  permit  him  to  thus  de- 
prive her  of  her  rights  by  fraud  a:ad  deception.      It  v;ill  be  observed, 
hoxftjer,    tliat    Che  plaintiff  in  that  action  did  not   leave   the    state  of 


181. 

California,   in  %iiich  both  p-arties  resided,   to  commence  his  cuit  for  di- 
vorce.;  only  soing  into  another  county  and  judicial  district  of  the   state. 
He  also  procured  personal  service  on  the  defendant,   "but  destroyed  it  be- 
fore she  iTcd  an  opportunity  to   inform  herself  of  the  nature  and  character 
of  the  action,  end  his  every  act  was  tainted  -.vith  an  atterapt  to  defraud 
the  defendant.     He  soes  into  another  county  of  the  state  to  connence  his 
action,  and  does  not  attempt  to  have  the  property  rights  settled.     She 
comnences  her  action  at  a  later  dato,   and  after  she   is   informed  of  the 
nature  of  the  dccroc  in  tho  former  action  to  settle  the  i^ropcrty  rights, 
and  thj  coia-t  says  she  is  not  barred,     Vfiiat  else  could  firi,  court  say, 
under  tlic  facts   in  that  caso?     She  hac".  not  voluntarilj''  had  her  day  in 
court,  and  Irnd  had  no  opportu.iity  to  litigate  h'_r  ri:jits.     In  oth:r  v/ords, 
she  had  not  pi*osocutod  an  action  for  a  decree  of  divorce  in  another  forum, 
and  tlion  como  back  to  the  hone  county  that  she  had  leoluntarily  left  to 
prosecute  another  action  in  the  naiae  of  lierself  and  another  husband  for 
a  division  of  the  comiaunity  property  of  lierself  aix.  former  husband. 

Our   attention  is  ne::t  called  to  the  case  In  re  Burdicic's  Estate 
(Cal.)  44  irac,   754.      Tne  facts   in  this    case  have  no  relation  to  the  case 
at  bax,   and  it  follov.-s  the  case  of  De  Godey  v«  Godey,  above  referred  to, 
and  -re  are  in  fali  sympathy  vlth  tlie  foinner  case,  under  the  facts  as 
tlierein  related. 

In  the  case  of  Bi^si  v.  Bijsi.    58  Cal.  55,    Z2  Pac.   805.     Mr.   Justice 
Harrison  states  the  facts  as  follo'/s:      "Ihe  plaintiff  -.-as   at  one  time  the 
vife   of  the  defendant  Harcissa,   and  in  October,   1888,  pending  an  action 
bet'w-een  them  for  divorce,   they  entered  into  an  asroerrent  for  the  division 
of  tleir  property,    in  -..hich  it    'as  provided  that  a  lot  of  land  situated 
on  San  Pablo  avenue,    in  Oaliland,   should  be  sold,   ax£.  the  proceeds  of  the 
sale  equally  divided  bet\;een  them,  but  tlic.t   aich  sal3  should  not  be  for 
less   than  05,100,   snd  that,  -..henever  offer  should  be  made  therefor,   one 
Vaiodercoolc  should  be  the  exclusive  jud^e  as   to  the  value   of   said  premises, 
and  as  to  accepting  or  rejecting  said   offer,  and   that  they    .ould  abide  by 
his  judgnent,   and  sell  tliS  premises  for  sujh  sum  as  Vandercoo::  might  de- 
termine.    2hic  lot  of  land  had  been  purchased  during  the  marriage  of  the 
partias,   ai:d  tlie  title   thereto  talcen  in  the  names  of  them  both,  but  the 
juc!-gmc-nt  of  divorce  \;hich  -..•as  afterward  rendered  bot-.veen  them  ..•as  silent 
upon  the  disposition  of  the  community  property.     In  June,   1889,   Vaiaier- 
coolc  received  an  offer  of  C'3.200  for  the  property,   -./hich  he  deemed  suf- 
ficient therefor,   and  \hich  the  plaintiff  agreed  to  accept;  but  the  de- 
fendant, v/hen  requested  thereto,   refused  to  accept  the   offer  or  sign  a 
contract  of  sale  unless  he  should  receive  the  entire  proceeds  thereof. 
*     *     *"     il:ie  trial  court  held  that  the  plaintiff  had  no  interest  in  the 
land,  v/hich  the  Supreme  Court  said  A;as  error.     V,hy  not  error?     Ihe  par- 
ties  to  the  divorce  suit  had  agreed  upon  a  settlement   of  this  property 
as  community''  property.      The  court  hoxl  jurisdiction  of  the  persons  and 
property.     Tliey  had  entered  into  a  solemn  contract  tliat   the  pi-oceeds 
should  be  equally  divided  -di^ii  the  property  should  be  sold,   and  the  court 
of  last  resort  said  the  contract  should  be  enforced. 

In  Salland  v.   Galland,   58  Cal.  265,   cited  by  appellants,  Ilr.  Justice 
Crockett,   speaking  for  tie  court,   states  the  facts  as  follows;      '"Bie 
question  presented  on  this  appeal  is  \hether  or  not  a  v/ife,  vdio,   TTithout 
caxisQ  or  provocation,   is  driven  from  her  husband's  house  \/ith  her  infant 


18E. 

Child,   and  is  v;holly  v/ithout  the  means   of   cuirport,   can  maintain  an  action 
against   the  hushand  fcjr  a  reaEonable  allo-.'anre  for  the  maintenance  of  hor- 
Eclf  and  child  unlers  sle  couijIge  v/ith  tha  application  a  prayer  for  a 
divci'ce."     Ihe  facte   in  this   case  certainly  a;:*e  not  in  harmony  -./ith  tlie 
case  presented  to  us  by  tZie  complaint,  \/hich  contains  no  allegation  as  to 
•.7hy  Elie   left  lior  home  in  Idaiio  and  -.vent  to  Oregon  to  procure  her  divorce. 
In  the  California  case  juct  cited  the   complaint  ijtated  "tliat   in  the  month 
of  ITovcmber,   1654,   defendant,    -.Tithout  cause  or  provocation,    drove  plain- 
tiff from  hie  house,   and  ever  lias  aiii?.  still  does  refuse  to  live  or  cohabit 
v/ith  plaintiff,   allo\/  her  to  return  to  his  house,   or  to  spoalc  to  him.   * 
*     *"     It  is   true,  plaintiff  alleges  in  her  complaint  that  she  has  demanf.- 
ed  possession  of  her  portion  of  the  real  estate  -..hich  -.aE  communit-"  prop- 
erty,  and  that  the   defendant  refused  to  alio.-  lier  to   occijpy  it,  but  it   is 
not  shova  '>;hen  slie  bade  this  dema'jd;    o-.iug  to  the  fact  that  she   took  up 
her  residence  in  Oregon,  procured  her  divorce  there,   and  ^.'2.s  married  to 
her  coplaintiff,  Charles  Bodal,    on  the  20th  of  Ilarch,  1900.     Ue  assume 
that  she  did  not  mal-:e   this  demand  until  after  she  had.  formed  a  new  com- 
munity -,dth  iier  present  husband.     It  is  I:ardly'  faix-  to  assuce   that  defend- 
ant,  Scs,1:b,   -.vould  sjitend  a  very    varm  reception  to  the  plaintiff  Maggie 
Bedal,   or  encourage  lier  very  much  in  her  ambition  to  procure  for  herself 
and  husband  one-half  of   the  property   that  he  had  boon  loft  to  care  for 
and  improve  during  her  absence  in  i^rocuring  a  divorce  and  the  selection 
of   another  life  companion. 

In  tlie  case  of  Laire  v.  Benf.er,    18  ITev,   561,   4  Pac.  711,   7  Pac.   74, 
v.-e  find  the  facts  to  be  stated  as  follo\/E:      "Vilaen  the  cause  came  on  for 
trial,   it    ..as  agreed  by  tlie  respective  parties  and  ordered  by  the  court 
tliat    t!ie  issues  relating  to  the  disposition  of  the  property  should  be 
vathdra.m  from  tlae   consideration  of  the  jury,  and  reserved  for  future 
consideration  and  determination  by  the  court,    in  case  a  divorce  slaould 
be  granted,     ^pon  the  special  findings   and  the  verdict   of  the  jury  the 
divorce  prayed  for  \jas  granted.     Subsequently  the  court,   sitting  -..Ithout 
a  jury,    tried  tte   issues  relating  to  the  cliaracter  and  disposition  of 
the  property,   and  founci.  that  it  belonged  to  the  defemf-ant  individually. 
It  does  not  seem  tliat   any  judgn^nt  rendered  under  the  above  state  of  facts 
could  in  any  r.'srj  affect   the   case  at  bar.     It   is  a  very  long,   instructive^ 
case,  \/ith  tJ:e  autliorities  bearing  on  the   issues  presented,   collated,   and 
commented  trpon;  but  we  find  nothing-  tliat  enliglitens  us   on  the   issues  in- 
volved in  the  case  we  are  considering,    cc-  that  strengthens  counsel  in  his 
position. 

Again,   in  vreiss  v.  Bethel,    8  Or.   522,  I'lr-  Justice  ¥atson  states   the 
facts   in  tlais   language;      "This   suit  -./as  originally  coi:ijmenced  in  tlie  cir- 
cuit court  of  Jaclson  county,  but  v-as  after-.-ard   transferred  to  that  of 
Benton  county  by  an  order  of  the  court  first  named,  upon  v.Titten  stipula- 
tion of  parties.     After  the  transfer,  plaintiff  filed  an  amended  complaint, 
by  leave  of  court,   and  made  several  other  parties  defendants.     Her  amended 
complaint  states,   in  substance,   that  she  vvas  married  to  defendant,  Albert 
Bethel,    in  1857,    and  lawfully  obtained  a  divorce  from  him  on  the  ground 
of  desertion  at    Gie  June   term,    1866,    of  the  circuit  court  of  Jacteon 
county;    that  at  the  time   of  the  divorce  the  defendant,   BetJiel,   was  the 
o\.-ner  of  the  Adam  Holder  donation  land  claim,    in  Benton  county,    Oregon, 
containing  520  acres;    also  of  lots  1,   2,   5,   and  4,   bloc'.:  3,    of    Cie  city 
of  Coisvallis,    in  said  county;    that  at  the  time  she  filed  her  complaint 


185. 

for  divorce  she  \i-sls  igaorjint  of  the  condition  of  said  real  estate;   that 
said  Bethel  l3pt  his  buciuoss  secret  from  her,  and  led  her  to  "believe 
that  he  had  sold  or  effectually  incum'bered  it,   so  that  at  the  time  she 
did  not  lcao\/    hat  disposition  he  liad  made  of  it .   *     *     *■'     Kov/  can  this 
case,  under  this  statement  of  facts,  have  any  "bearing  on  the   (raestion  at 
issue?     Thd  vdfe  comiTienced  her  action  in  the   jurisdiction  -.hore   tlie  de- 
fendant resided  and   the  pro^^erty  tas  situated,  "but   in  hor  action  for  re- 
lief she  pleads  that  by  the   fradulent  representations  of  the  defendant 
sloe  \;ac  led  to  "believe  that  the  property  vra,s  incum'bered,   and  tl-^t  she 
could  not  reach  it.     lio  such  charje  ac;ainct  the  defendant  in  t'lis   action, 
and  no  reason  ^iven  for   leaving  the  jm-icdiction  of  the-  defendant  aoid 
property  to  ooraaence  her  action  in  another   state. 

In  the  case  of  Tftietstone  v.  Coffey,  48   Itex.   269,   tlie    facts,   as  we 
gather  tiem  ixom  foe  opinion,   are  tlxit   the  plaintiff  in  tliat  action  lived 
-.dth  l^er  hus"band  upon  520  acres  of  land,    tlie  ri^ht   to  -vhich  had  been  ob- 
tained under  the  pre-eoiption  laws    (\7hetstone  and  his  v;if e ) ,      The  plain- 
tiff in  this  case  resided  upon  the    land   from  1850  to  1659.      In  1859  the 
husband  sold  tie  land  to  Ben  VansiclcLe,  •  without  her  consent  bein^  ^iven 
to  the  said  sale,     Eie  coui-t  says   it  \/as   then  community  property  of  Anf-- 
erson  V;hetstone  and  his  wife,  Ilarsaret  V/laetstone.      To  shov/  that  she  never 
parted  \7ith  said  ri^ht  by  abandonment  or  otliei-vise,   z^n&  allowed  that  she 
Nvas  forced  to  leave  her  said  homestead  and  follow  her  then  husband  and 
family;   that  he  shortly  thereafter  abandoned  her;   tlaat  neither  he_^nor  she 
liad  any  other  homestead  up  to  the  tiae  that  a  divorce  \ras  obtained,   in 
1865;   that  she  has  never  acquired  one  since.     Under  such  a  state  of  facts, 
it  is  not   to  be  concluded  that  she  had  lost  her  ri^ht  to  the  land  up  to 
the  time  of  the  decree  of  divorce  by  his  abandonment  of  and  separation 
from  her.     It  is  not   slx\m  here  that  the  plaintiff,  v/ho  seeks  to  establish 
her  ri;^t   to  her  interest  in  the  communitj''  property  of  her  deceased  hus- 
band,  although  she  -.vas  divorced  from  him,   sought  such  relief  ••ith  her  co- 
plaintiff,  her  husband,   at  the  time  of  the   institution  of  the  action.     In 
other  \/ords,  she  had  not  formed  a  new  community.     But  it  v/as  sho'.ai  that 
all  proceedings  v;ere   in  the  state  of   Tesas both  in  the  action  for  di- 
vorce,  as  well  as  the  one  for  hsr  interest   in  the  property. 

Colvin  v.  Reed,  55  Pa,  575,    is  cited  by  appellants.      Ihe  statement 
in  this   case  is   that  Jemes  and  Susanna  Taj^or  at  the   time  of  their  mar- 
riage,   in  nay,  1857,  were  citizens  of  Pennsylvania.     Shortly  after  their 
marriage   they  made  a  visit  to   Iowa  and  returned,  rirs.    Taylor  not  being 
pleased  v.i  tla  the   country.     After  their  return  she  declared  to  him  her  in- 
tention not  to  live  v/ith  him,  and  refunded  to  him  O^O his  "bill  for  the 

e:rpenses  of  her  journey  to   Io\"7a.     She  remained  in  Allegheny  City  and  he 
went  back  to  Bedford  county  in  Odtober,    and  remained  tlaere. until  Llay, 
1858,   vhen  he  sold  his  farm  to  the  defendant,    and  removed  to   Iowa,   leav- 
ing his  wife  in  Pennsylvania.     In  1860  Taylor  commenced  proceedings  for 
a  divorce  a  vinculo,    and,    after  di;e  publication  of  notice,   a  divorce  v/as 
decreed  on  the  ground  of   the  desertion  alleged  to  have  taken  place  in 
Pennsylvania.     Susanna  Taylor  had  no  actual  notice,  aix.  at  the  time  was 
a  resident  citizen  of   the   state  of  Pennsylvania,   never  l:iaving  left  it. 
The  question,   on  this  state  of  facts,    is  v,hether  the   lova  coxzrt  liac".  juris- 
diction to  declare  the  divorce  of  :.!rs.    Taylor,   so  as  to  discharge  the 
lands  of  lier  husband  in  Pennsylvania  from  her  right  of  dower.     In  closing, 
the  court  say:     "Eiese  arguments  have  been  noticed,   and  it  has  'oeen  shown, 


184. 

I  think,   that  the  principle  fii^ds  limit,   xhen  confronted  "by  the  equal 
and  prior  ri^ht  of  another  state,  and  "by  the  acts  of  a  plaintiff  who  has 
atandonod  his  domicile  and  his  remedy  to  tals  up  a  ne-./  domicile,   -./here 
the  dGfoudant  lias  never  appeared."    Applying  this  rule  to   the  case  at 
tar,  v/hat  ctandin^  has   tlB  plaintiff   in  this   court?     Eln  voluntarily  atan- 
done  her  domicile  and  talces  up  lier  residence  in  another  state,   there  pro- 
cures her  decree  of  divorce  on  a  service  hy  puT-jlication,   the  defendant 
not  appear! nj  to  contort  her  action,   ani  then,   after  a  num'jer  of  years, 
and  after  fce-jp  ne-.?  contract  of  marriage,   comes  to  the  court  that  always 
l^d  jurisdiction  of  the  property  for  lelief. 

In  Heel  v-   Elder,  62  la.  309,   1  Am     Eep.  414,   cited  hy  appellants, 
TO  find  the  follovdns  lan^uase  in  tl:e  syllalDUS:     "'Hie  injured  party  in 
the  manriase  relation  must  seel;  redress   in  the  forum  of  the  defendaiit, 
lualess   ./here  the  defendant  has  removed  from  ^ilat  •  as  l^ef ore  the  common 
domicile  of  "both." 

\Te  scarcely  feel  justified  in  prolonging  this  discussion,   or  reviev;- 
ins  the  larse  numher  of  authorities  cited  "by  learned  counsel  for  respond- 
ent.    It  seems   to  us  that  the  authorities  '.tb  liave  heretofore  copied  from 
and  discusGec""  preclude   the  appellants  from  a  -ecovery  in  tlois  action  on 
the  pleadings,   at  least  ac    they  nov;  stand;   cncL  the  plaintiff  having  dis- 
solved tl-js  old  connunity,   if  not  "by  her  Oreson  divorce,  "by  her  ne./  one^ 
formed  in   tl:e  marriage  to  her  coplaiiitiff,  precludes  her  frou  maintaining 
an  action  for    the  coram"unity  property. 

In  Heatou  et  al.  v.   Sa.vyer,   60  Vt.  495,   15  Atl.  166,   it  -Jas  held 
that  v/here  the  '.dfe  axd  children  on  t]:e  granting  oi'   tte  divorce  moved  from 
the  premises,    sad  were  absent   to  yeais,  it  v/as  an  a"bandonment  of  the  home- 
stead.    Wiggin  V.  Buzzel,   58  H.  H.  o29,  holds   that  "a  divorce  ottamed  'oy 
a.  wife  "bars  her  homestead  right  in  her  husl^aid's  property,  unless   such 
ri--ht  is    reserved  "'jy  the  decree  of  divorce."     Brady  v.  lireuger,   8  L.  D. 
464,   66  H.  W.  1083,    59  .^i.  St.  Rep.  771,  holds:      "Where  the  relation  of 
husband  and     'ife  is   terminated  "jy  divorce,  she  ceases  to  have  any  claim 
upon  or  right  in  his  property,  whether  homectesd  or  otherwise  unless  such 
right  is  reserved  to  lier  '^y  the  decree  of  divorce.      lienever  thereafter 
she  seeks  to  assert  any  claim  of  ar^^  charactei    in  any  part  of  tlie  hus- 
TDand's  property,   slie  must  esta'olish  her  rig^it  Vy  such  decree,   or  ^jy  valid 
contract   oet-zeen  herself  anc?.  him." 

In  r.osholt  v.  llehus   (H.  D. )   57  n.  U,  7SD,  23  L.  H.  A.  2j9,  a  well- 
considered  and  interesting  case,   in  • 'Mch  the  authorities  are  collated  anc. 
discussed  hy  Chief  Justice  Baxtliolomev;,  he  usee  tlus  significant  language 
"And  it  is  true  that  courts  111- er ally  construe  homestead  la 's  for   the  pur- 
pose of  effectuating  their  -.vise  and  Tseneficffint  intentions,   to  the  end  that 
no  family,  through  the  misfortune  of  poverty  or  the  death  of  its  legal 
head,  mqy  "be  deprived  of  shelter,    and,  "hen  the  homestead  consists  of  a 
farm,   as  in  tlus  case,  of  support.     But  all  tloe  reasons  .-hich  liave  induced 
the  la'  to  f-,vor  the  --/ife  or  wido.;  in  the  matter  of  homestead  r\'ghts  are 
entirely  absent  in  cases  of  divorce."     See  Doyle  v.  Co'rarn,  6  Allen,  71. 
Barnatt  v.  Bamett,   50  Jac,  507,   a  Hew  Ileicico  case,  ■:y  Chief  Justice  Smith 
is  a  very  interecting  one.      Ve  find  tliis  pertinent  language  used:      "It  is 
wisdom  t:-!at  for"bids  the  nfultlplic-^ti on  of  litigation  on  the  same  EU"bject, 
and  spares   suitors  needless  vexation  in  tlia  deteiTaination  of  thair  rights. 


185. 

The  partiss  to   this  c  ontrovGrty,  '.lavinG:  "bGen  tepar^ted  "by  final  decree  of 
a  court  of  coiTrpetcat  juiisc-iotiou,   t^re  Q^to'jj:.QC  from  iurtliox  }iaraLLia2 
each  othear  as  con&orts  ia  ano tiier  trrjunc.l." 

A  great  many  otl.er  aiithori tj.es  are  cited  ":y  co'oassl  lor  respondeat, 
supporting  those  alrsady  i-eierred  to   in  this  opiaion,   -ut  ■ 'e  do  aot  feol 
called  upoa  to  pursr.e  this  diECusaioa  iurthei.-    S.:ie  plaintiff  UaQ-jie 
Bedal  voluntarily  a^bandonod  liar  I^ojiie,  and  o'^tained  lisr  decree  of  di-/o~ce 
in  a  loruiii  xlthout  jurisdiction  to  diipoce  of  the  com.;iu::ity  property— 
oein^'  service  ■b3''  p"u\^lica,tion— -thsi'eaftex  ma:.ri3£  aiother,  and  then  ioim& 
£,  ne..  cor.iunity,   end  shs    111  "rj^ro  to  loolc  to  lier  precent  cor.inunity  for 
her  futuie  cupport  and  happinesi,.     v/e  do  not  tidn":  che.EliOrJ-d  eajoj''  the 
fruitc  a    her-  ne;,'  coniiumity,   and  have  a  pension  fiom  her  I'omer  one. 

Che  jud^i-jent  of  tlie  district  court  1l  ^A'fVxX^&Cf  './ith  costs  to  re>- 
spondent.  ~  " 


AilshiQ,  J.,  cov-cuis. 


l=r-o^        i^ 


Sullivan,  C.  J.    {distentinc; ).     I  am  unajlo  to  corjsar  in  tl:e  conclus- 
ion reached  li-j  tlae  raajority  cf    tl:e  court.     !i.ection  24-80,  ?Lev.  &t.  1887, 
provided  ho'v  conmunity  and  hoinestsaf.  propsrty  c:::all  'r:-  disposed  of  in 
case  of  divorce,  anr".  ic  us  follo/t:      -'In  case  of   ths  dissolution  of  t:„3 
raarria^e  "by  the  decree  of  z.  court  of   cor.:potent  juiic'.iction,   Ifhe  coiu-iunity 
property  and   tL-.o  honestead  must  'js  assis-ned  as  follo-'i:      (1)   If  tl£  dec-3- 
Tdg  rendered  on  the  ^rovnd  of  adultei-y  or  e;;tre.:'fi  cruelty,   the  cccL.iunity 
property  must  Le  assigned  to  the  respective  parties  in  such  pioportioas 
as  the  comt,  from  all   the  facts  at    th^  case,  and  the  condition  of  the^ 
parties  deerns  just.      (2)     if   the  decree  bs  renc.sred  on  any  other  '^.rounc". 
thaa  tlor.t   of  3d.-dtery  or  e:;treae  cruelty,    th£  community  property  must  be 
equally  diviC^d  Iset  "een  tie  parties.      (G)     If  ..  homestead  has  "been  select- 
ed from  the  coiauunity  propertjr,   it  -may  ho  assi yned  to  the  innocent  orrty, 
either  ahsolutely  or  for  a  limited  period,   suhject  in  the  latter  Case  to 
the  futiii-e  disposition  of  the  court:   or  it  aay  "be  divided  or  he  sold  and 
tlie  proceeds  divided.     (4)  If  a  homestead  lias  "been  selected  from  t:-£  sep- 
arate property  of  eitliex,   it  must  he  asEijiied  to  the  iorm&-_   oraer  of  such 
property,   suliject   to  the  po  ;er  of   the  court  to  assign  it  for  a  limited 
period  to   tlie  imoosnt  party.-'     In  the  case  at  ■';sr  it   is  alle:;ed  in  tie 
complaint  tliat  the  propertj'-  involved  is   comaunity  property  accuired  "by 
the  joint  efiorts  of  hoth  hus''j.:aad  aiK.   .ife,  anif.  thereafter  v/as  homestead-ed 
under  the  la\7S  of  t^iis   state  l^y  the  ■■'li'Q,     "JhllQ  it  does  not  appear  on 
"hat  grounds  th.e  v.lfa  o"!3tained  the  odvorce  in  ths  Ore^jon  coiat,    the  pre- 
svxiTption  is  thet  it  ■•■■'b^  on  s'ifficient  pround,  a;id  that  the  hus"ba^.  ••as  in 
Jault.     If  it  ^lat  obtained  on  any  other  ground  tljan  tlir.t  of  adultery  or 
e::treme  cruelty,   and  had  heen  o'tained  in  a  competent  court  of  the  state 
of  Idslao,   said  section  of  the  statute  provides  that  tlie  community  property 
must  "be  equally  divided  hetv/een  the  parties,  and  in  other  cases   it  must 
"be  divided  as  the  corct,  from  all   Che  fucts  of  tlie  case  and  coxation  of 
the  parties,   deems  just.     And  I  do  not    tliin"-:  the  fact  thj2.t  Hie  divorce 
'./as  detained  in  t!:B  sti.  te  of  Or-egon  is  a  suiricie-it  reason  for  dcpri^^inr 
tlie.  ^/il'e  oi    a  part  of  the  property   tlxit  she  l:^x\  helped  to  accumulate.     A 
court  of  equity  •.;ould  Irave  pa.  er  to  do  justice  "betveen  tlie  parties  after 
the  evidence  v/as  introd.uced  on  the  tricl,    crd,   if  it   chov.Bd  the    :ii.e   ^as 


^;.^ 


(^^^i-'tf-^o 


/i^j::s^:^«-^^*<^ 


^^. 


.<>t^ 


t^t-'t'  r 


\^^i^^^f-^Ao 


^i»--a-^ 


z' 


•' 


.-<>th^^^.^ 


166. 

entitlod  to  receive  a  portion  ol'   tiie  property  tlic-t   sl"^  assisted  in  ac- 
cu,;iul:itiu3',   Ll's  certcinly  ou^ht  to  have  it.     Kie  plaintiff  in  tliis  actio:.'. 
lia.C  filed  a  c.3clii=.,tion  of  hOiAai-oeacl  on  the  1. nc.  in  controversy,  i  ncL 
section  3041,  ?.3v.  Lt.   1887,  declared  thit  a  homestead  can  "be  alD  ndoned 
only  "^y  a  declaration  of  abandonment,   on  a  2-^J^t  of   oonve-yaixce  thereof, 
esecuted  and  ac.-io  'ladled  as   thsrein  specified. 

The  c^uettio:i  oi'  an  imoceut  purc:is.£Gr  of  said  property,   for  v  J.ue, 
'athout  notice,   is  not   involvad  in  this  aase.     I  think  thie  allgoatious  of 

of  th3  complaint  state  a  cause  of  action,  and  the  denujrer  should  have 
J 3 en  overruled, 


j/w\yC/^<^ 


^^*<i<&^t>^—    <7 


,-**'^^    -^     '  /^  C     ,^6e^^^^    ^  .-.^^a:<^^T-^<^     —     -:^'^;^*-*-^ 


J   . 


'-^ 


V 


187. 

a.  ■5' 

GECRGE  L.  HILL,  Appellant,   v.  A.   B.  YCIMG  and  ""^ 

HIUDA /..  YOUHG,  RecpondontG. 

(7  Uash.   33,    1693.) 

Appeal  fi'om  Superior  Court,  King  County. 

The  opinion  of  the  court  was  delivered  "by 

Stiles,   J.  —  This   is  an  appeal  from  a  judgrmnt   of  dismissal  rendered 
in  a  pairtition  suit,  consr-Gnced  as  a  suit   in  equity.     !Ihe   judge  sitting 
for  file  hearing  of  equity  causes  heard  the  testimony  of  the  parties  until 
each  had  rested,  and   then  finding  that  the   cause   involved  the  determina- 
tion of  facts  concerning  the  title  v;hioh  v.ere  proper  to  ''oo  sutnitted  to 
a  jury,   instead  of  calling  a  jury  himself,  made  an  order  transferring  the 
case  to  another  department   of   the  same  court,  where  in  the  orderly  dispo- 
sition of  the  business  of  the  court  jury  cases  v.-erc  usually  heard.     In 
this   second  department  special  issues  covering  the   question  vliether  the 
land   sou^t   to  be  partitioned  had  been  acquired  by  the  grantor  of  the  re-^ 
spondent,  A.  B.  Young,  with  money  which  was  his  separate  property,   or  with 
money  which  was  the  community  propertj''  of  the  grantor  and  his  v/ife,  v.-ere 
submitted  to  a  jury  and  determined.     Upon  application  to  each  of  tho   judges 
who  hoard  the  case  for  judgraent  upon  the  special  findings,  each  declined 
to  act,   upon  the   ground  tliat  the  other  had  the   only  jurisdiction  in  that 
matter,   and  tte  mandamus  case  of  State,   e::  rel.  Hill,  v.  Lichtenberg,  4 
^ash.   553    (30  Pac.  Eep.   659),  vas  resorted  to  to  settle   the  question.      In 
obedience  to  the  writ  of  mandate,   the  judge  of   the  equity  departirent  pro- 
ceeded to  a  final  determination  by  dismissing  the   action. 

Upon  this  appeal  from  that  judgment,   the  first  point  made   is  by  the 
respondents  uxjon  their  motion  to  strike  the  statements  of  facts,    of  v/hich 
there  are  two.     Er.ch  of   tlie  judges  lias  certified  to  a  statement  as  con- 
taining all  the  facts,   etc.,   in  the  case  before  him,  but,   of  course,  not 
as  containing  any  facts  occurring  before  his  associate,  aid  the  argument 
made  in  favor  of" the  motion  is   two-edged,   for  it  is  urged  that  inasmuch 
as  neither  judge  has  certified  to  all  the   facts,   there   is  no  complete 
statement  certified  by  either,   aaid  therefore  no  statement  upon  \'zliich  the 
court  can  review  the  case. 

neither  party  took  the  position  exactly,  but   it  seems  to  us  that  the 
simplest  T;ay  out   of    the  matter  will  bo   to  entirely  ignore  the  statement 
concerning  the   jury   trial.      There  was  but  one  legal  trial,  and  that  \-3.e 
the   one  before  the  equity  judge,   the  proceeding  taken  to  place   the  case  be- 
fore a  jury  having  been  entirely  irregular  and  unwarranted  insofar  as   it 
attempted  to  transfer  tho  case  to  a  department  presided  over  by  another 
judge.     \.'e  \70uld  not  bo  here  understood  as  holding  that  the   judges,    in 
counties  having  more  than  one  judge,  may  not  refer  the  entire  hearing  of 
a  case,   or  of  any  integral  part  of  a  case,   to   some  other  judge.     But  there 
can  be  no  propriety  in  sending  a  part  of  a  trial  on  the  merits  into  anoth- 
er department,   or  after  the    trial  has  progressed,   in  sending  the  v/hole  case 
to  son©  other  judge,  merely  because  there  are  found  to  be  questions  vhich 


186. 

mi^ht  "better  'ae  suTDmittec".  to  a  jury.     In  t  lis   instance   tlB  case  had  been 
fully  lieati'd  and  submitted  for  fins-l  determination  flf  tlr^  question  of  title 
before  the  order   to  transfer  v.-ac  m^.c'.c  u;^Jon  tLs  court 'g  q-jo.  motion,  aix.  all 
benefit  of   tlae  hearing  v;aE  threatened  to  be  lost,  wMch  tlireatjv/as  so  far 
realized  that  UJon  the   jury  trial  the  most  rmi:>ortant  •-.•i-jness  hC'.d  ^one  hone 
to  ?_-ot:iGr  state,  "tenco  he  refused  to  retua-n.     Holding  these  viev/s,  ■-'e 
shall  sustain  tie  motion  to  strike  tlie  statement  of  the  jury  trial  anc'.  re- 
tain the  other  s.l   the   stoternent  in  the  case. 

2.     CSie  coi;-X(ALaiat  sho'./s  on  the  fact  of   it   tliat  tlie  resi^jondents  hs-C. 
been  since  IHS5~Tii  possession  of  the  land  sou:^ht  to  be""partit ioneTr ijidcr 
a  conveyance  of  .ihe  whole  tract  i' ro  ;i  the  fa  tier  of  the  appallant,  vHid 
ciaxmsrra  half  interest  as  sole  neir  of  nirmofciei,  deceased  in  188'J~be- 
fore  tb.e  conveyance.     -Hie so  facts,  r 3 &:,-.onden t s  cT^rrT,  "l^r e cludo d  any  suit 
for  2a:iAition  until   there  had  beffi  an  "acTi'on  at  lsA/_to_trj'-  tittle'.     'Our 
statute.  Code  i'roc,  Sec,  577,  provides;     ^'V/lien  several  persons^EOld  and 
are  in  possession  of  real  property  as   ter^nts  in  com.vion'"'  t'lere  rnay  be  a 
partition,   and  the  corj-ion  la\/  rule  is  '/ell    settled  that  \.'here   tlae  party 
geghing  partition  Itp.e  been_QU£t£d  of  pQs>.o::Eion  by  his   aliased  tenant^  iir 
coinrnon  under  a  clain  of    adverse  title   to  tl"^  "vhole  estate,   equity  v/ill 
notdet^rEiino-ths-leTVal  lights  of  the,  parties.  _rree:.ian  on  CotenancyT 
Sec.  447. 

VJliere  the  pleadaag-s  of  tls  defendant  disclosc-c.  tlie  adverse  claim, 
the  practice  ".a-    to   stay  the  partition  proceeding  vintil  the  plaintiff  got 
his   jud~ment  for  possession  at  law  (Brov.-n  v.  CrsJiberry  Iron  J;  Coal  Co., 
4:0  Fed.  Bep.  849)  .^  but  vhere  the  complaint  itself   failed  to  allege  posL« 
©Esion,    or,  as  in  this  case,  alleged  adverse  possession  in  tlae  defeix'.aiLt, 
natirrally  a  dismica?!  follo-'.ved.     Such  has  been  the   construction  under 
statutes  having  the  same  language  as  that  above  quoted.     Florence  v. 
Eopldns,  46  IT.  Y.  182.  Freeuign  on  Cotena/ncy,  hec  450,  ho-evei ,  sho.rs  fh&i 
tlie  rule  lias  been  to  tiie   contrary  in  Jiacsachusetts  and  Ixaine,  and  closes 
thtis: 

"In  truth,   t::e  liinitations  attending  proceedings  in  partition  are 
constantly  -.;ea-ening,    cxad.  the   tG::^-ency  to  do  il'.ll  srid  complete  justice 
to  fce  parties  in  one  action  is  beco.iiiig  ir::esi£tible.     v/iierever  the 
question  has  recently  arisen  a-c  a  ns-;  question,   the  ans -er  to  --^/.icii   the 
co.TTts  v/era  freo  to  give  v/ithout  consulting  decisions  i^irde  at  an  early 
day  v^nen    the  cominon  la'-  rules   v/ere  more  ^.-otent   tlian  at  present,   it  has 
been  resolved  in  frvor  of  talang  jrjrisdiction  -/heneverthe  complainant 
shows  liinself  seized  of  the  requisite   title,  whether  the  landc    sought  to 
be  x^sirtitioned  are  held  adverse!;"  to  hiiii  or  not." 

This  nev/  practice  has   long-  been  in  vogue  in  California,  -./here  Bollo 
v.  ilavarro,   GC-  Cal.  459,  and  liar  tin  v.  "/sl'.cer,   58  Cal,    590,    ./era  decided, 
and  it  -/oulo.   seen  to  be  the  only  rational  practice  under  a  code,   especial- 
ly -.hen  our  Code  Pxoc.  Sec.   583,    is  considered,    that    section  providing  as 
follo'.;s: 

"The  rights   of  the  several  parties,  ^.l?intif±s   as    'ell  as  defendants, 
may  be  put  in  iSLUe,    tried  and  determined  in  sucli  sua  to*' 


/^ 


V 


y*^ 


189. 

ThiB   lav;  e:cistE  in  Cal  iforuia,   azic".   the  court,    in  Usirtin  v.  Walkor, 
alludes  to   it  as  sji  a6.ditional  reason  for  its   ruliuj  conf inning  niany  pre- 
ceding caoec  ou  tlin   same  ct'bjent 

S.   It  v;aD  not   necGCsary  to  allege  that  tlioro  v,as  necessity  for  a 
sale  in  lieu  of  partition,    or  that  partition  could  not  "be  made  witliout 
great  prejudice  to  tlie  ov/aers.     Code  Lroc,   Sec.   584,  prcrvidcs   that,    if 
such  a  state  of  facts  appeal's  from  the  evidence,   vathout  allegations   in 
tlie  complaint,   a  sale  may  "be  ordered. 

4     ffiiere  had  been  no  administration  of   Gie  estate  of  lire.  Hill,  de- 
ceased.    V.e  hold,  hov/Gver,    tliat  ^here  the  v/ite  died  in  1663,   leavinj  an 
only  child  anc'.  her  husband  surviving,  am?,   tliere  ]md  been  no  administra- 
tion upon  her  estate,    cr  upon  the  coranunit;^  px-operty,   there  v/as  a  clear 
presumption  in  1691  that  as   to  the  c Qrimunitj''  ie2l  property  tliere  was  no 
necessity  for  administration,  aiid  Ciat    fi:e  ri^lit  of  the  child  to  the  pos- 
session of  his   share  in  the  c  aa^mnity  real   estate  as  heir  to  his  mother 
was  completOo     'Ihe  -lusbtuxu  alone  has  tlia  pover  to  r-ianso's  cud  control  cor.i- 
mimity  ronl  property,   aixL  he  alone    can   incur  indebtedness  v/hich  \rould  be- 
cccffii  a  charge  upon  such  property,   e;:cept  foi'  fainilj'  necessities-      Ziese 
are  his  debts,   and  to  him  tliey  are  presented  for  payment.     Statutes  of 
limitation  vail   run  against  aiem  while  he  lives  and  remains    in  the   state, 
and  after  so  long  a    time,   aiil  no  petition  for  ac'jninistration  having  ever 
been  filed,   it  ought   to  "be  presumed  in  favar  of  the  child,   either  that 
there  were  no  cor.imunity  debts,    or  that   fihcy  have  been  paid  or  bea-red.     '.7e 
so  rule,    in  full  vie'.r  of  Balch  v^   Smith,  4  Ua£h.  497    (30  Pac.   Rep.  648). 

5.  The  land   in  controversy  was  acquired  in  1871,  being  conveyed  to 
the  husband  by  deed  of  purchase.     Tie  act  of  1869,    "defining  the  ri^Jits 
of  husband  and  vlfe,"  declared  tliat  propeirty  acquired  by  either  husbsiid 
01-  ^/ife,   e:;cept  that  acquired  by  gift,   bequest,  devise  or  descent,   should 
be  ■'common  property."     Sec.  2.     It  also  provided  tix:t  the  husbani?.  shotid 
have  the   same  absolute  pov/er  of  c'd-sposal   of  the   coiiroon  property  as  ho  ::iad 
of  his   separate  estate  -     Sec.   9.     Kesponc.ent£  maintain  tlaat    fiiis  povrer  to 
dispose  was  a  vested  right  in  the  luisband.,   \/hi<3i  could  not  be  talEn  sf/Esj 
by  any  subsequent  statute.     But  it   is  not  necessary  to  decide   this  point. 
Z~&  act  of  1869  haying  declared  certain  property    •"common  property-,''  did 
not  mate  provision  far  tlio  disposal  of  sucli  pi-opertj'  upon  the  death  of 
eitlier  spouse,  as  was  done  by  later  lav/s  on  tlie  zsiiiQ  subject;  but  '.'e  tloinls: 
that  -litlaout   anything  ixir tlier  thaii  was  contained  in  tliat   act  the  courts 

of  the    territorjr  \.x)uld  have  been  bouix".  to  administer  upon  such  propert;'', 
after  the  fcath  of  husband  or  \7if9,   according  to  the  established  rules  of 
tliose  states   ^id  countries    i-iere  couiraon  or  community  propertj^  la\'s  had 
er.isted.     Tlie  first  aid  car-dinal  of  such  rules  vas  that   Uie  camunity  -"as 
dissolved  b-f  tlie  decease  of  either   spouse;   ne:it,  the  right  of  disposal  in 
either  spouse  ^>'aE  en^f-ed;   and,   third,   the  property  becane  vested  by  moie- 
ties  in  the  sui-vivor  and  the  cliildrea.     Pnai-efcre,  upon  the  death  of  Its. 
Hill,    in  1883,   even  if  the  -ct  oi   1662  './as  tie  only  la-7  applicable  to  this 
land,   the  rijit  ol'  the  liusband  to  dispose  of  the   ./hole   estate  terminated. 
And  it  may  be  furtSier  stated  tliat  the  puichaser  in  this  instance  Iciew  of 
the  Liarriage  relation  v;hicli  e::istad  betv.-een  his  grantor  and  I'xt,  Hill, 
and  lais';/,  alco,   tliat  the  appellant  v/as   tlieir   only  cliild. 

6.  V/hatever  objections  raa.;'  Iiavo  been  v;ell  f  oiiided  as  agsdnst   the 


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190. 

sufficiency  of  the  reply  cire  obviated  by  the    fact    that  this  vvas  an  equity 
cause,    smd  that  upon   the  trial    the  respondents  v^olly  failed   to  substan- 
tiate  the  allesations  of  their  amswer,  \-,hich  they  claim  vrere  not  met  by 
the  reply. 

7.  Appellant  produced  the  deed  to  his   father  \Thich  showBd  on  its  face 
a  conveyance  of   land  for  a  valuable  consideration,   and  prima  facie   the 
land  convej,'-ed  i/as  coraraon  propcrtj'-.     Yesler  v.  Hochstettler,  4  V.'ash.   349 
(30  £ac.  Rep.  398). 

Hie   burden,  then,   v;as  upon  respondents  to  shov/  that  the  money  paid 
for   tiio  land  \g.e  the  separate  property  of  John  S-   Hill.      The  Hills  v/ere 
married  in  1859,  at  v;.aich  time   Gie  husband  owned  one-third  of  a  small 
steamboat,  worth  about  02,000.     In  1860  the   interest  in  the  steamer  was 
e::chansed  for  50,000  feet  of  lumber,   worth  about  Ol,250.      Ihe   lumber  was 
sold,  and  ',>800  of  the  money  derived  therefrom  vvac  used  to  buy  a  farm  in 
Kins  county.      In  1866  the  farm  vras  sold  for  a  cash  payment  of  0^00  and 
a  credit,  Vviiich  i/as  never  collected.     Ihis  C?SOO  was  perhaps  used  to  pay 
a  part  of  the  cost  of  a  steamboat  called  the    •'Gem,  '  tlie  whole  cost  of 
which  was  between  ^iS, 000  aind  ^4,000.     The.  testimony  of  Hill  as   to  where 
he  got   Cie  balance  of  the  money  paid  for  the  boat  was  that   "he  didn't 
know;  he  errpected  he  made   it  someviiere .  •'     He  ovmed  the   ''Sem"  until  1872, 
and  from  the  time  he  bcuslat  her,   about  1866,  until  187£,  he  operated  her 
on  Pu^et  Sound,  himself  actin:;  as  captain.      Over  and  above   the   operating 
e^i^pecses,  he   received  about  CilOO  a  month  for  his    labor  and  the  earnings 
of  th3  boat,  and  he  testified  that  the  money  he  paid  for  this  land  must 
have  been  money  accfuired  from  his  use  and  operation  of  the   "Gem,"  as  he 
was  then  in  no  other  business.     But  again  he  sai?-    that  in  the  years   in 
v^iich  he  was  not  ctcanboating — 1860  to  1866 — he  made  money  right  along 
in  other  business;    tliat  liO.  never  iiept  ai^  account  of  any  moneys  made  in 
any  transaction,   and  that  he  could  not   tell  -.iiether  his  money  came  fiom 
his   steamer  or   whether   it  v/as  money  made  before. 

Und-er  every  consideration  of   the  lav;,   such  a  state  of  facts  left  it 
entirely  uncertain  \iliether  tha  property  viiich  Captain  Hill  owned  before 
marriage  had  auytZiiug  to  do  vath.  earning  him  as^^rthing  in  1871,   and  the 
pre  sunn?  t  ion  of  the  deed  was  undisturbed- 

Upon  the  viiole  case,    thereforo,  we  are  of  opinion  that  the  court 
erred  in  dismissing  the  action,   aiad   that  the  cause  shoulc.  be  remaiided  for 
an  interlocutory  judgment  establishing  appellant's  title  to  an  undivided 
one-half   of  the   tract  in  cjuestion,  and  his  right  of  possession  as   tenant 
in  common  \ath  the  respondents,  and  for  further  proceedings   in  the  matter 
of  the  partition.     So  ordered. 

Hoyt,  Scott  and  Anders,   JJ  ,  concur. 

DonbaT;    Q.   J.,   concurs   in  the  result. 


,  J 


CHAPTER  111 


CITATIONS. 


How  is  it  dissolved? 

(&)  By  separation.   (Id)  In  fact, 

Branscheid  t.  Branacheid  (1902). 

Herrett  v.  Herrett  (1910). 

Tituo  V.  Titus 

for den  v.  Worden 

(a)  Power  of  court  to  av.-ard  property 
of   spouses. 

Howell  V.   iJunning  (1920). 

Van  Gelder  v.  Van  Gelder 

Clemana  v.  Western 

Miller  v.  Miller 

MitchQll  V.  Mitcnejl 

Ramsdell  v.  Eamsdell 

Eidhardson  v.  Bicterdson 

Cozard  t.   Oozard 

Markowski  v.  ifejteowsld. 

Hay  V.  3ogg3 


(b)  "vVhen  property  ia  mentioned  in  the  complaint 
but  not  cared  for  in  bhe  decree. 

Helson  "7.  McPhee 

(cj'  RelationoMp  of  the  parties  \\hen  the 
decjre©  does  not  award  the  property. 

Graves  v.  Graves 

Duval  V.  Healy  Lumber  Co. 

Hicks  V.  Hicks 

Balch  V.    aaith 
Cox  V.  Tomkinson 


27 

^iaah. 

358 

60 

7/ash. 

607 

66 

V/acQi. 

345 

96 

Waah. 

592 

109  Wash. 

591 

61  Wash. 

146 

39  Wash. 

290 

38  Wash. 

605 

39  Wash. 

431. 

47  Wash. 

444, 

36  iVash. 

272 

48  Wash. 

124 

44  Wash. 

594 

77  Wash. 

321 

59  "rtrash. 

103, 

48  wash. 

664 

57  7;ash. 

446 

69  .Vash. 

627 

64  Wash. 
39  Wash. 

497 
70. 

.<^^ 


.^ 


"T" 


S^^   ^/^^=^-tg/ 


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,X^- 


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r    ^'^ 


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^ 


.-C?- 


191. 

I  o   ^  «    \ 


B.iFJl  p.  £;Ti::£R5]  et  al.,  A.->i:jellaats,  v. 
BAltv     of  ::iffiIGG:'r  et  al.,  KesjoiidentE. 

(82  ■-"asli.  106,1914) 

Appeal  i'ro;-.;  a  ju.".;j;-.ient  of   tlia  cuperior  coiu't  for  "uiitrnan  county, 
IvbCroskey,  J.,   entsi-sd  PeTDru£,i-y  26,  1S14,  dismissins  an  act  ion  to  reco-:2r 
poc.£.cs£ioa  of  pe-£;oiii,l  pio;^;Grty,  upon  sustainiiio'  a  denurx^Cir  to    tloe  corc- 
plaiut.     Affiiued. 

Cxose,  J. — BiiG  is  an  action  to  I'ocovar   u^e  pocce;.sion  of  pronicsory 
no  tec,  cartif  ico.tos  of  dcpooit,  ^'jc.  :aoney,'anountin:y  in',  tlie  ao3^eo2^~*° 
nore  tnan  ',^27,000.     Tlie  defendants  save: ally  demurred  to  tlie  coraplaintj,- 
for  the  re.xon  tnat  it  does  not'etate   facts   sufricient  to  coustituta  a 
cause  of  action.     2h.e  denua-rers  v;ere  sustained,  c.itl  the  pl.:,iiii:if f s  el^ct- 
in^'  to   stcncl  on  tljeii-  complaint,  a  jut-^aaut  was  entered  dismissin;^  the 
action.      Ihe  plaintiffs  appe^^led. 

•lHhet  alle:§ed  cause  of  action  has  its  "bacis  in  a-aitten  instrtUiieut  e::- 
ecuted  by  t'ue   several  appellcjits  aiid  one  Ale::a:ider  Stewart   in  his  life 
tLne.      Tlje   instrument,   oaittin^'  sisnatui-es  ait'-  the  attestation  clauce,    is 
as  folio-,7s: 

"Vfliereas,   the  underLiG,ned,  Ale::  Etev-art,   ox  'V/aitE'bm-s,  './ashiriston, 
has  heretofore  craised   to  be  conveyed  and  transferred  to  Bair  P.  Etev.'art, 
niizabetho  G.  Ste./art,   Cliarles  3.  Lte-'art,  Dd^^  L.  Ste-.7art  am?-  I'anor  P. 
Ltov/art,   certain  real  aoc'-  personal  property,    situate  .both  in  the  stj.tes  oi 
Plori(^.a  and  'w'ashiii^jfion,   and  oGier  states, 

"And  \71i3reac,   all   or  the  propert3r,  botli  real,  pe.soual  ai^T.  rai.:ed, 
nov:  held  aid  possessed  b^r  3arr  x.  £tev/ai-t,  lilizabeth  G.  Lte^■?a-t,   Chai'les 
B.  Stff.-'ort,  nd^'ar  L.  Ste-v'-.rt,  Miner  ?.  bte:'^xt,  was  received  indirectly 
in  trust  froa  Ale::  Etev/art  and  l^elon'^-::  to  tl:a   u?id   Ale::  £te  'art. 

"And  YiTneroas,   it  is  understood  ■bet^■/een   tliD  parties  hereto  that  all 
prcrpcrty,   both  real,  perco:£.l  -.nd  ni-;ed,  held  aix.  possessed  by  Barr  I  • 
StGv/art,  Elizabeth  0.  :.te'-£j.-t,   Charles  L.  Lte  :art,  W.:^ci-'  L.  Stevrait,  i:i3::s: 
P.  5te/ai't,   at  the  tii.ie   c£l   tls  death  of  said  ;J.a::  Lte.^art,    should  he  not 
survive  theu  shall  vast  in  sc-id  parties  in  fee  caid  bocouie  their  property 
absolute,  char^^-ed  only  ./itli  tlie  aaintenance  of  Iiai~ia  C.  Ste-'ait, 

"Am'-  ^/liareas,   it  is  understood  bet»een  the  parties  hereto  that  all 
of  saic-  property-,  both  real,  personal  and.  ni::ed,,  nov  held  3m\  possessed 
by  tlie  said  3arri'.  Ste./art,  IClisabeth  G.  £te'vart,   Cljarles  B.   £te^/ait, 
IJdc-r  L.  htr'-jrty  Kiiior  x^.  LtewcC't,    crii'- t.o  be  hereafter  caused  to  be  con- 
V3yed  to   them  bj^  the  said  Ale.:  Ote'/art,  and  held  aid  possessed  in  ti-ust 
fOx  hin,    sIijJLl  bo  ai  all  tiiiies  i."TX-^   tLa  life  of  said  Ale;-:  Lte-,;art  under 
■lis  control  and  Cdrection,    and   tlie  said  parties  herein  iiaaed  holding-  said 
possesiion  the  saioe  shall  co:ive3'  aiiL  dispose  of  tls  saije  uif-er  the  oidsr 
aiid  direction  of  the   So.id  .Ue.:  f:ta--:.rt,  end  to  ai"  p.rty  or  parties  n.-nad 
b-  hin. 


192. 

"And  ^ihereac,  Ilaria  G.  btev'/art,  vile  of  Ale::  Ste\/,.rt  is  not  nov;  of 
sound  and  disi^JOEin^  mind  z.ixi  neraory,    aid  i&  being'  cared   for  an;'-   looVred 
after  by  the  said  Alex  Stewart,   it  is  undGrstood    tliat   El".ould  slie   survive 
Ale;:  Stewart,   t'li^iA,   all  of  tie  property,    botli  real,  porEonal  and  ni::ed, 
heretofore  and  hereafter  caused  to  be  conveyed   snd  transferred  to  BaiT  S'» 
Stev/art,  Elizabeth  C.  Stewart,   Charles  B.  Stewart,   Edgar  L.  Stev/s.rt,   Kinei 
y.  Stew?rt,    sloall  be  and   remain  a  trust  fnndid  in  their  hands  for  tlE 
maintenance  aixL  siroport  of    the  said  liar ia  G.  Stev/.  rt   so   long  as   the  lives. 

ITow  Therefore,    It  is  underctood  snd  a^'^^eed  by  Siid  betv;ecn  Ale.:  Stev- 
axt,  as  party  of  the  first  part,  and  Barr  t.  Sto..'art,   Elizabeth  C.  Stev/- 
art,  Edgar  L.  Stewart,  Miner  F.  Stev;crt,  as  parties  of  the  second  part, 

"V/itnesseth:      '2hat  first  party,  being  in  fret  ovcaer  of  all  the  prqp- 
erty,  both  real  ard  pergonal  novr  held  and  possessed  by  second  parties  in 
both  ti:e.  states  of  V/ashington  and  Florida  in  tiust  for  first  party,   £n.d 
tlie  second  parties,  are  to  hereafter  hold  a'iX'.  lossess  othar  property,  both 
real,  personal  ani  mi::ed,  coijveyed  and  transfen-ed  t  o  them  in  trust  for  : 
first,  party.     All  of  said  propertjr  is  helf-  anc".  possecsedand  to  be  held 
aiX-  poEsesced  by  seconij.  parties,    su.bject  at  all  times  to  the  control  and 
disposition  of  first  party  during  his   life  tine,    ^nd   in  order  that  first 
party  do  have  control   aid  disposition  of   said  property,    secoi:d  parties 
agree  to  convey  an.d  transfer  said  property  at  any  tine  to  whomsoever  di- 
rected by  first  party  aad  pay  tlie  proceeds  thereof  to  first  party. 

"The  sole  and  only  purpose  of  t'.iis   agreement   is  to  .«Becure  the  main- 
tenance and   support  of  first  larty  and  hie   invd  id  and  derrented  wife  in 
coafort;  and  plenty   so  long  as   each  of   them  sliall  live,    that   is,  furnish 
them  a  good  home  vath  all  the  comforts  of   life   and  pro:,.er  care   in   tlieir 
declining  years:    after  vhich  it  is   tl^.e  desire  of  first  partjr  that   the  re- 
mainder thereof   siall  go   to  cccond  partiac  as    tlieir  possession  ard  the 
records  shc.ll  tl'jsa.  show. 

"It  is  expressly  understood  that  all  of  the  parties  hereto  in  the 
execution  c£   this  agreen-snt  fully  assent  aitl  agree  to  ^11  of  the   terms  of 
this  agreement  as    .'611  as   all  the  facts  herein  recited  in  relation  there- 
to and  tiiat  the    sssr&  is  bi;:f-ing  both  severally  and  jointly." 

V.'e  have  italicized  portions  of  the  instrui-nent  to  give  prominence  to 
to  Its  daninant  purpose,     -ifter  setting  out   this    instrruaent,    the  con^-laint 
alleges  that  Ale:;c-nd6r  Steuart  died  in  fho   state  of  Florida,   in    Sie  month 
of  novenber,   1S12;   "tliat  under  zxic.  by  virtue  of  said  as?:eemant  hereinbe- 
fore specifically  ret  oiTt,   said  parties  of  th^   secoix.  x-£.i"t,  being  the 
plaintiffs  herein,  becarae  tlze  o.-'Hers  Of,    aid.  under  cjic\  by  virtue  of  said 
c^-reemcnt   ard.  in  lurtuance   thereof,    sai  d /JLe:.:  Stewart  transferred  tto  them 
under  said  agreement,"  dui-ing  his  liie  time,   tie  folio- ;ing  described  _.i-o. - 
arty,  to  wit:-'     ffliis  is  follo^/ed  by  a  description  of   the  notes  and  cer- 
tificates  of  deposit  aud  by  a  statement  of   oIe   a-aount  of  monay  in  res;, ond- 
eat  bank,     it  is    further  alleged  Giat,   inJsnusry,  1910,  Ale.:anif.er  ^'.te-.-j.rt 
•iflade  a  last  -v/ill  arte:-  tect-mout,    setting  it  forth    in  h^-ec  voiba;   tli't  in 
March,  1913,    tlie  Eu.-orior  court  ox  '■'hitmai:  oounty  entoi-ed  ai  oreter,    cd- 
mitting  the   ..ill  ard   testsj.ient  to  probate  and  e^^ointing  the  res  ondent 
Sh6i-m£.n  al..n.nistrator  of  the  estate  vlw--  t:ie  vdll  cjine::ed;    that  he 


193. 

qiaalifiQcl  and  is  acting  as  aucli  adrainic trator ,•  tlx,t  he  filed  a  verifier. 
iuvGUtoi-y  embracing  the  i)roreity  iu  contro-crsy^  in  v.c-^ich  he  ro:,Ji'eseats 
that  it  v/as  tie  coranunity  prOj.Jcrty  of  his  iatostate  and  his  survivin3 
-,/ido'./  Ilaria  C.  StG\vart,,and  tloat  lie  represontcd  it  v^as  all  the  :2^0jQxt" 
Tael online;  to  the  estate  that  liad  "coi-ae  to  his  imov/ledse  or  i^oesceeIou." 
It  is  furtJicr  allosed  that  Cic  r-esi-ondonts  lia.vc  posscEGiou  of  the  proi>- 
crty  Eou^at  to  ho  rocovei-ed,,  that  fiiey  liavo  liad  srch  poEscssion  •'since 
■before  thj  death  of  said  Alcsiander  Stevort,''  and  that  they  laave  refused 
upon  doiaand  to  deliver   it  to  the  appellants . 

V'e  thinl:  tiie  demurrer  v-'as  propci'ly  sustained.      It  r/ill  "be   observed 
tho  a^jreei^ont  recites  that    liio  property  belongs  to  Ale::ander  Stcv/art: 
that  all  property  viiich  ho  slx)tild   transfer  to  the  apiellants  "before  his 
death  aJf-  -./hich  is   "held  and  possessed  '  hy  them    'at  the  tine   of  the  death 
of  tjio  said  AleL-:aiiler  Lte\/art,  '•  e1x)uM  he  not  survive  them,   sl-iall  vest 
in  Giem   in  fee,  char,G;cd  v.lth  t!^o  raintcnancc  of  his  demented  wife.      It 
further  recites   tliat  \,'hatovcr  pioperty  is  ''licld  and  possocsod  hy  than" 
is   "in  trUEt  for-  him  '  and  under  his  dii-cction  and  control  dui-in^  his   life 
tiitxi,    End  that  cujh  pr'aperty,   should  his  vaf  e  smvivo  him,   sliall  be  and 
remain  a  trvst  fund  lor  her  naintcnance  and  support.     It  reiterates   that 
the  deceased  is    ''in  fact  ovrner  of  all  the  property''  theretofore  tranc- 
f erred  to  the  appellants  or  thereafter  to  be  transferred  to  liiem,   to  be 
hold  anc!.  possossod  by  tlx^m  ''in   ti-ict  for  first  party,''  mcanins  tiao  de- 
ceased;   that  it  shJDulc.  be  hold  by  them  subject    to  hie  control  and  dis- 
position, and  that  iliey  -.touIc  convoy  to  T^iomso-ver  he  directed  "and  pay 
ttio  proceeds   thoroof  to  fii-st  party."     2ic.  contract  slio'/s  tiat  the  de- 
ceased Was  a  rjariicd  raan  at  the   time  of  tlio  6xocution  of  the  instrument, 
and  that  his  xrifo  v/as  then  non  compos  mentis, 

The  prosujT©tion  is  that   Z\o  property  vas  community  property.       To 
state  a  cause  of  action,   it  i/as  incuiiibent  upon  the  appellsnts   to  ?.lle^ 
tliat  the  propeorty  involved  %as  tlie  separate  property  of  tlie  deceased. 
In  re  Desclxamps'   Estate,  77  \iash.   514,   1D7  Pac.  1009.     Our  statute,  Rem. 
Cc  Bal.   Code,  Sec.   5915    (P.  C.  95  Sec    25)  provides  that  property  and  pe- 
QTccaisxy  ri^-hts   avned  by  th^  hi^sband  before  i-ngj  i  i  s^e  2nd  that  acruired 
by  him  afteravards  by  Gift,  bequest,  devise,   or  descent,     :ith  the  rents, 
issues  and  profits  tlereof ,   sliall  be  hie  sepaa^ate  property,   and  tl^t  he 
may  raanase,   lease,  sell,    convex^,  encumber,    or  devise  b^r  -.vill  such  prop- 
erty v.'itlaout  the  co-operation  of  his  wife.     Section  5916    (I-  C.   95  Sec. 
9)  provides  that  property  ovnied  or  acquired  by  the  wife  in  the   same  '-'ay 
sliall  be  her  separate  property,   <:aid   tjiat  tie  sl'all  have  a  lite   independ- 
ent power  of  disposition  of   it.     Section  5917   (P.   C.   95  Sec.    27)  provides: 

"Property,  not   acquired  or  owned  as  prescribed  in  the  next  tv/o  pre- 
ccdin;:;  sections,   acquired  after  marriai-e  by  eithsi-  husband  or  wife,    or 
both,    is  community  propertj^.      Bie  husband  shall  liave  the  raana:;ei.-Bnt  and 
control  of  CQ-.wxxnlt-j  personal  property,  v,ltli  a  lilce  po^7er  of  disposition 
as  he  has  of  his  separate  personal  property,   except  ha  shall  not  devise 
b"  will  more  than  one -half  thereof." 

Section  5519   (P„   C.   95  Sec.  41-1)  provides  that  a  husband  and  wife 
may  enter  into  a  joint  aiTeemfint  coixernin:;  the  status   or  disposition  of 
an^'  portion  of  tiE  comnunity  pi*operty  tJien  a\.Biod  ar  thereafter  acquired 
by  them,    "to  talE  effect  upon   &.e  deat'n  of  either.'    Section  1C42   (P  ■   C. 
409  Sec.   639)  provides   tliat,  upon  tha  death  of  either  husband  or  wife, 
one-half  of  tlie  community  property  shall  30  to  the  survivor  subject  to 


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194. 

the  community  debts,   and  tlie   other  half  shall  "be  stibject   to  testamentary 
dicpoGition  of  the  deceased. 

ltd  transfers  v/ere  purely  voluntary'-.      Ire  appellants  toolc  nothing]: 
"but  the  nated  le^al  title.     Ite  roal   wvncrship  and  the   jus  dispo:u'.eaii 
ranained   in   flie  deaeased.      It   is  declo.red  that  the  property  'bolonjs    to 
him,    to  be  held  for  him  durio^j  his   lifG  -aid   to  "be   traasferrcd  as  and  when 
liQ  should  direct;    the  proceeds  of  the  property,    if  lie  v/illed  that   it  '■-'■. 
Should  be  sold,  t  o  be  his.      The  appellants  franldLy  say  in  tleir  brief 
that  "the  agreement  v;as  niade  so  that  his  '..Ife's  relatives  would  not  sh^a::"© 
in  his  property  and  he  v/ould  yet  have  dominion  Cfver  it  during:  his  life.'' 
■Ziic   is  apparent.     In  his  \dll  lio  devised  end  bequeatlied  dl  of  his  prop- 
erty,  real  and  porEonal,   to   tlic  children  of  a  deceased  brother  and  sis- 
ter.    Ihe  deceased  sought  by  this   instrument  to  accomplish  vhat  the  lav^r 
says  he  caanot  do  by  a  testanx^ntary  disposition.     Kg  cannot  thus  circum- 
vent th-e  statute.     Under  the   lav/  of  this  state,    the  trust  terminated  upon 
the  death  oi  Ale:caader  Stev/art.     Under  the  trust  agreement,  he  v/as   the 
eqmitablG  ovvooer  of  the  property  at  tlie   tiire   of  his  death.     Upon  his  death, 
it  became  subject  to  the  law  of  descent   of  fliis  state.     In  Cornv.-ell  v. 
Y/ulff,    148  Ho.   542,    50  S.  \7.  439,    the  court,    in  speaking  of  equitable 
estates,    said: 

"It  is  elemental  that  equitable  estates  are  jovemed  by  the  same 
rule  of  descents  that  governs  the  devolution  of   legal  estates  and   if  this 
wQTe  not  so  g-reat  confusion  would  result.      (1  Perry  on  Trists,   sec.   557; 
Gushing  v.   Blake,   50  H.   J.  Eq..   689,)     Vftsn  therefore   it   is  determined 
that  Mrs.   Cornwell  by   the  terms   of  tlB  deed  itself  too'ic  an  equitable  es- 
tate in  fee  simple   in  these  lands   it  follOY/s  tliat  upon  her  death  it  de- 
scended to  her  heirs,    the  plaintiffs   in  this  case,  subject   to  the  court- 
esy of  her  hue band. " 

Ttiis  view  accords  v/ith  the  letter  and  spirit  of  our  community  prop- 
erty laws  aid.  \7ith  our  laws  of  descent.   JVhile,  under  the  provisions  of  »  ^_,^ 
Eem.^&JBal.   Code,  Sec.    5917    (I.   C.   95  Sec.    27),    tie  husband  is   given  the  ""  — ^  ^' 
maaasement_?y]d  c  Oitrol  of  community  personal  property,   >e   is  foihidden  <^ 

to   devise  by  will  more   than  one-lialf  thereof.     He  sou^-ht  by  the   instru- 
fiert  under  review  tOhQld  the  equitable  title  to  the  property  during'  his 
life  time  v/itii  full  po\^r  of  disposition,  aicl  to  dispose  of  the  fee  and 
subject   it   to  another  trust  after  his  death,    in  violation  of  the  spirit 
of  our   law.     BallinG;er,   Comi-.-iunity  Property.,   Sec.  78. 

The  appellants  rely  on  Gae  case  of  Lines  v.  Lines,   142  Pa.  St.  149, 
21  Atl.   809,   24  Am.  St,  467.      This  case  proceeds  upon  the   theor;:,'-  that, 
in  tlie  state  of  Pennsylvania,  the  v,-ife  has  no  interest  in  the  personal 
p-joperty   of  tha  conmunity.     It  is   said  "he    (the  hus-batxl )  may  even  besj,ax 
himself  and  his  family  if  he  chooses  to  commit   sich  an  act  of  folly."' 
Our  law  is  more  just  and  humane.     KcSay,   Community  Property,  Sec.   514. 
As  ar::;ued  b3'-  the  respondents,    the  purpose  of  Sec.    5917   is   to  s^i'ro  the 
management  ar£.  control  of  the  community  personal  property    to  the  husband 
for  the  pvtrpose  of  facilitating  the  business   of   this  coinnunity.     He  can 
neither  beggar  hit    family  nor  use  the  community  personal  property  to  grat- 
ify a  caprice  to   thv/art  the  law,    or  for  his   o\,n  personal  aggrandisement. 

She  judgrrent  is   af finned.  ^::^  y<>  y^  i      )<_  W 

Crov/,  c.   J.,  Ellis,  riain,  and  Chadwiok,   JJ. ,   concur."  ''^J 


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1S5. 


J.   L.   STUEBLZFilHD,   Appellant,   v.   J.MvIEE  McAULIFi'  et   al., 

Respoiidents, 

(20  Uash  442, less) 

A^'jeal  froi.i  Superior  Court,    ualla  'Valla  County. Hon.   dUioraas  H. 

Br  era  t  s ,   Jud^-e .     Af  f  i  r  raed  . 

Hie  opinion  ol   tho  court  ^'as  delivered  by 

Reavis,   J. — Action  by  appellant  to  recover  judj;^gu.t .ajiai/is t  res:^-ond- 
ent  Jssnoi.  licAuliff  on  t'-o  prorniscpi^rapteE.  e::eQute_d  "by^nim,  and   to  fore- 
clOL^   thrDo    .10.  t;;ajcr.  e.;ocr.ted  to  EGC-oi'e  tlie  notes.     1!he  notes  were  re- 
spectively e.--ocuted  payable   to   the  order  of  iBster  ti-^Boy-er,,,  £.:ii.   transferred 
■Jy'tl-.ern  to  a.-^ollant.     fflae  principal  morts^se,    Lecurinc  one  note,  v;as 
e::ecutecl  by  J:j.vr^'l'[Glinllxf  and  Ms  fnan  -/ifo,    Isabella  IIcAuliff,   snd  the 
real  ^^■ro^^erty  incluc.ed  in  the  mort^-ase  v;as  ti:e  coi.¥nunity  estate  of  IIcAul- 
iff anf.  v/ife.     2ie  v/ife,   Isabella  IIcAuliff,  died  intestate  on  Septeinber 
1,   1889,   and  no  adininistration  hzx  been  had  upon  her  estate.     2he  respond- 
ents,  James,  Pr^jnlc  and  'ViHiara  McAuliff  and  Anna  Glo-/e,   are  the  children 
of  Ssraes  IIcAuliff  and  \7ife  Isabella,  deceased.     J'anes  IIcAuliff  made  var- 
ioxis  payi7ientc  on  tiae  note  more  tli<;;a  si:;  years   after  its  maturity,     oome 
of  these  payiTients  v/ere  roade  ■■hile  his  vd  f e  v/cs  living;,  and  oEierc  after  '  .^ 
her  death.      'Pnere  is  bo  contention  tl-^t  Isabella  ItoAulif  f  authorized  &1Y 
of  tl:e  payments  made  after  the  ric.tu-.ity  of  tl-js  note.     Tho  res^jondents, 
children  of  Jaines  and  Ssabella  ItoAuliff ,   ans-.-'erod  the  co .-.plaint,   claiming 
a;-  the  heirs  c£.   Isabella  IIcAuliff,  deceased,    ai  undivided  one-half  in- 
terest in  the  real  property  described  in  the  aort^ase,  free  from  tl-.e  lien 
of  the  mortga^-e,  a.xf.  set  up  tloe  statute  of  limitations  a^'ains  t  the  note 
and  mortgacje.     Uijon  the  issues  so  niade  bet^/een  ap^-ellamt  and  the  heirs  of 
Isabella  I^lcAuliff,   the  cause  .-roceeded  to  a  finsl  decree  in  April,    1697. 
^e  superior  court  adjudged  the  heirs  of  Isabella  IIcAuliff  the  o-.aiers   of 
the  undivided  one-half  interest  in  the  comraimity  estate  wliich  had  been 
raortgajed,   raid  sustainee  the  plea  of   tlie  statute  of  limitations. 

The  important  question  presented  here  is  upon  the   stctute  of   linit- 
ations  of  this   state.  Sec.  4817,   Bal.   Code    (2  Hill»s  Code,   Sec.   lo2), 
v;hieii  i*eads: 

"TrJhen  any  payment  of  principal  or  interest  has  been  or  shall  be  mad.e 
upon  apy  existing  contract,  \h.ether  it  be  a  bill  of  exchange,  pro.mssor;^ 
note,  bond,   or  other  evidence  of  indebtedness,   if  such  ^aj'ment  be  made 
after  too  same  shcJLl  liave  become  due,   tls  limitation  shall  commence  from 
the  time  the  last  pajrment  "./as  made." 

Upon  the  note  executed  by  James  IIcAuliff  in  1880  and  secured  by  tne 
mortgage  executed  by  himself  a-jc".  ^if e,   Isabella  JIcAuliff ,  payments  had 
been  made  by  isnez  licAuliff  at  sucli  intorvals,   both  during  the   life  time 
of  Isabella  McAuliff  32xc  after  her  death,   tha.t  the  full  period  of  six 
years  did  not  elai^se  betv/een  the  accruing  of  tlB  cause  of  action  and  the 
first  payr.ient,   or  bet"/een  any  t'/o  payments.;    and  a^.ellant  maintaiins   that 


9     . 


\ 


196, 

such  paynsnts  x^revent  the  hsa-  of   the  statute  in  favor  of  Isaibella  IIcAuliff 
and  her  heirs.     Resjjondentc,    the  heirc,  maintain  that, •.  1  ith out   the  e::press 
authority  of  Ssabella,  IIcAuliff,   the  :,;ayi-iients  niade  hy  Jsffjes  IIcAuliff  coulc. 
not  inure  against  thsm. 

She  rule  enunciated  by  the   later  cases  is   tloat  part  iJayment  by  one 
person,  boii^s  equivalent   to  a  ne-'v  contract  based  upon  an  old  consideration 
upon  which  a  cause  of  action  accrues  at  the  tii^e  of  the  x-ayment,  binds 
only  the  person  raalcin^-  the  pajmimt,   or  one  v/hom  he  lias  authority  to  bind 
by  a  new  contract  to  pay  tlie  b  lance.     The  position  of   the  IIcAuliff  heirs 
is  fairly  stated  in  Banlc  of  Albion  v.  Burns,  46  U.Y.   170,  as  follows: 

"The  property  of  the\vife  having-  been  mor traced  to  secure  the  debt  of 
her  husband,'  slie  occupied   tlie  position  of  a  suretjr,  ^ath  alL  the  ri,:;;iits, 
ISG'al  ;nd  equitable,   incident    to  tliat  telation:   and  the  defendants  having' 
succeeded,  by  inliei-itaiice,  to  the  estate  and  interest  of  their  mother, 
occupy  the  sanie  position,  aii?.  are  entitled  to  every  defense  ^;hich  could 

have  availed  to  the  original  mort^asor  had  she  lived The  v/ife,   aiid. 

those  clain-iin:^'  under  her,  are  entitled  to  the  benefit  of  th&  rtxles  pro- 
hibiting all  dealings  of  tlia  creditor  with  ttxe  principal  debtor  to   ^~q 
prejud-ice  of  the   surety," 

Also  the  principle  is  discussed  in  ilcColl-.lin  v.  Bou^liton,   152  Ho.  601 
(34  L.  \'!.  460);  Wilmer  v.   Gaither,  68  15d.  542    (12  Atl.  6);   lord  v.  Morris, 
18  Gal.  482;   Crattan  v.  \;iG;-;ins,   25  Cal.  16, 

•She  distinction  v.hich  ^.'as   the  'feasis  of  -aio  decision  in  Cross  v.  Allen, 
supra,  bet\;een  paymait  made  before  and.  -aifter  the  bar  of  the   statute  has 
attached,    is  ,  as  obser'ved  in  V/illoioghby  v.   Irish,   35  Minn.  65    (27  H.  '■■!» 
379,   59  .'>jn,  Rep»  297),   founded  upon  no  principle,     Aut'-Ority  to  inake  the 
new  contract,   or  authority   to  e;:tend  or   revive  the  liability,   is  essential 
to  its  validity,  and  it   is  just  as  unreasonable  to  assume  it   in  fhe  one 
ca:i.e  as  in  tlie  other;    and   tJie  distinction  has  been  e::presslj''  repiidiated  by 
a  lar^'e  nuxiber  of  the  courts.      It  is   clear  tloat,  under  the   section  of  our 
statute  req^uirins  a  ne'./  promise  to  be  in  \.'ritin:j  in  order  to  revive  or 
continue  the  obligstion,   one  of    tA7o   codebtors  could  not  make   such  progiiGe 
for  the  other  \.lthout  eiQress  authority,   vhether  the  ac'aiowledsrnent  or 
promise  vas  made  before  or  after  the  statutory  bar  had  attached;  and  it  is 
equally  axvarent,   uon  vrinci:^-le,   that  the   same  rule  controls  in  payments 
upon  ail  e.:isting  oblij;ation. 

The  superior  court's  construction  of  the  statute  of  limitation  is, 
therefoie,   a^-^roved.      Otlier  minor   objections   to  tlie  jud3,ment  have  been  e;c- 
amined,  but  we  ia  not  deam  then  sufficient  to  warrant  a  aodification  of 
Gie  judgnent  or  reversal  of   the   cause,  and  tlie  juc-^ment  is,   therefore, 
affirmed. 
■ f-o  N—      \^_a_j<-     ^ 

Scott,  C.  J.,   and  Dunbar,  Andei  s  and  C-ordon,JJ.,  concur,  i 


197. 


H.   L.   TIB3AI£,  SP..,  A^Ji-iellaat,  v.   Johii  Iff  laud,  Respondent. 

(10  V/ach.   451,    1895) 

Aiveal  from  Su'^^orior  Court,   Jefferson  County. 

The  opinion  of  tlio  coiirt  v/as  delivered  by 

.^iHderi,   J. --On  June  15,   1869,    the  ap^^ellant,  ty  an  instriiiiient  in 
v^rittns,  duly  e-iecuted,    leatec  to  one  Herinaa  ?rc„.)eur  a  certain  store  room 
in  tlie  city  of  iort  Z'ownsend  f or~'0Te~pori^d^of~ftve~7©ars~ffbni  tl^  fir^t 
day^of^Ilr.xek^  1890^  for   the  sun  of  one  hundred  dollars  peTlnonth,  payatlo 
inadvance  on  "the  first  day  of  each  and  every  month,  ••.hich  sun  the  said 
_^apeur  a^-reed  to  pay  in  accordsoice  with  the  terns  of   said  lease..     Gai 
Api'il  6,   1390,    the  said  lessee  assi:;ned  dl  his  ri^lit,   title  and  interes_t 
in^  aad  to  said  loa&e  to  one  ".".littlese^,  -.jiio  on  October  22,   1891,   assisned 

the  ^ane  to    the  respondent.    Iff  land. 'Hie  respondoiil,   about   the  first  day 

'of  ITovemb'jr,    l&Cl,    wout  into  poscession  of   the  preiniE.es,    2nd  paid   the 
rent  to  appell;n.t,   according  to  the  ^/rovisions  of    the  lease,  for   tZaree 
raonths  thereafter,    and  then  failed  :nd  refused  to  mal:e  furtlier  pay.tieiits. 
This  action   (ori^inall;'-  Uro  actiSis,  which  -./ere  consolidated  anfi-    tried 
as-  one)7~was  instituted  to^  recover  the  rent  alleged  to  be  du.e  for  si;: 
successive  "months,   be3inning_wi  th  l;iarch,    1892. 

'The  respondent  set  up  as  defenses   to  the  action,    (1)   that_o"^  *^^  1^^-- 
day  of  January,   18927Tie,""by  ah  instrument   of -.vritin^-  duly  aciaiov;l eddied, 
assigned,  for  value,   all  Tiis  riGiht^ title  aiac.  interest  in  2nd  to  the  lea&e 
"allSjed  in  the  coniplaint"  and'the  premises   therein  described,   to   one  Jol^n 
B^aett_,  aa;.   si^rrendered  the  possession  of  acid  _premis es   to  said  Barnett" 
and  put  him  in  possession  of  the  sai-ne;   and    (2)   an  adjudication  in  his 
favor  in  a  justice  court  in  an  action  for  the  rent    for  the  month  of  Feb'- 
ruary,   1892.-    Most,- if- not  all,   of  tlie   testimony  offered  as  to  this  latter 
defense  v?as  rejected  by   Uie  court,    and   the  case  ^'ent  to  the  jury  upon 
the  questions  raised  by  tlie  first  affirmative  defense  pl2adec!i"and~;there 
was  a  verdict  eJxL  j^xC.^asilt~foV  flae  defendant. 

Yfliile   tlie  statute  provides    {(ie-a,  Stat.,  Sec.   199)   that  the  county 
auditor  shall,   upon  the  i^-ayment  of  his   feec  therefor,   record  leases  v/liich 
have  been  aclmov.ledjed  or  proved,   no  provision  is  made  for  recording 
assio'i^ments  of    those  instruments,    2nd  therefore  a  failure  to  record  tlien 
vdll  not   alone  render  them  invalid..     Leases  of  real  estate  for  more  tlian 
one  yeai ,  bsinj  incui-ibrauces  upon    fce  property  demised,  must,   under  oui 
statutes,  be  created  by  deed  aix'.  with   tie  usual  formalities  of  deeds. 
But  tlie   interest  conferred  by  a  lease  for  a  terra  of  years,  whether  for  a 
lon^  or  sliort  ^-eriod,    is  only  a  chattel  interest    (1  V.'ood,   Landlord  ancL 
Tenant,    (2d  ed. ) ,  pp.  145,   149;   Gear,  Landlord  end  Tenant,   Sec.  2),  and 
is  ^saerally  subject   to  Kie  la-:  pertaininj  to  chattels. 

In  tliis  case,  the  lease  ^'as   transferred  by  the  respondent,   as  we 
have  said,  by  a  -a-ittan  iustiument  \.hich  \-o.i   si;:;ned,  vatnessed  and  ac«t 
lcnov/led3:ed,   and  ■•as  tlierefore  valid  even  upon  the  theory  contended  for  by 
appella:it,    tliat   such  acsiG;nnents  c:n  only  be  effectually  made  by  deed.. 


198. 

Tlie  first  iUGtructiou  :;ivGn  by  the  court  to  tliG  jury,  -liich  is  cl^i;n- 
ed  by  aiJj.Jellmt  to  bo  orronsou:;,   is  -s   follov:E: 

•"'5.     In   Siiis  case  I  in^ctruct  you  tliat  the  defendc-iit  H'flaiic.  had  a 
le.-.l'ul  risht  to  a^s & i Jn' thT~l o as o  of  t lis, Jj ui Id la:, ,_ fo r  uiich  the  pljiin tiff 
claims^rent,   tCThothsi-  'S^eTzoi-i.  for  ttie  x)ur2P-Be..of_,ri^dxiiS  hi;:£eif  of 
liabiirty"  to^'jc^;;  "rsimo'^Iilaiutiff  ^l^nd  if  you  believe  frora-Boe^av if jsnc 9 
/  that  "'t:ae  defe^c[aiit"^a£ sighed  all  his   interect  in  the  lease  on  -.tAcli  :jjlaiii- 
tiff  c i ?i;.i s  rentj^ei' or  e~t"he  f i r s fiiay "  of  l.Iarch,   1G92,   cad  sujr.'endered 
'PoasocLJjjii  of  theJbuildinG  in  rueotion  to  Jo>ji  Barnett,   thsn  you  must  fivL 
foi  t>£  defendaiit.'"' 

\       !i?hiG  instruction  is   "sub ct -anti ally  in  accord  •'.jth  the  authorities.   ?J^ 
ai._-ellant*ir objection  ic   iiot     •ell   t^Icen.     1  "Vood,   Landlord  end  Tencnt,  _.'. 
749.;    1  Vashb.u.-n,  Seal  xro:  eity  {5th  ed. ) ,  525;   Jol-jnsoii  v.  Ehenncn,  15  Gal 
287    (75  I'ja,  Dec.  461);   Ghilds  v.  Clarh,   3  Barb  Ch.   52    (49  Am.  Dec.  164): 
xrabue  v.  IIcAdaac.,   8  Such,   74;  Duiand  v.    3urtis,   57  IT.  Y.   7;   Ssiiders  v. 
ifejrtridse,    108  liass.   556. 

Hor  -^/ar    it.  error  to   -^ive  instruction  Fo.   6,  --..hich  it    in  the  following' 
"w/ordc: 

■'You  are  inctractad  that  if  you  find  iro..-;  tlie  evidc;nce  tr.at   i-s  de- 
fcnc'uint   as£.i;jned  the   lease  on  '.vhich  rent  is  claLnedbefore  tlie  fiist  day 
of  liarch,   1692,   and  surrendered  .os-ession  of  tl-.9  i^i  eniset-  to  John  Barnett, 
then  you  nuct  find  for  the  defendait,   althou^'a  yon  fiiic'.  that  plaintiff  hcd 
no  notice  of   such  a&E.i^nnent.'' 

Appellant  contends  that  -..Ithout  notice   tQie  s.iiCi~;iar.ient  was  ineffectucl 
as  to  him.     But   the  authorities  ap.-ear  to  be  the  other  r,'ay.     Sie  la'-v  appli-- 
Cable  to  this,  as  well  as   the  precediu:^  instruction,   is   stated  by  '.7ood  in 
his  valuable  treatise  on  Landlord  and  Tenai'it,    supra,   in  tliesc  -/ords: 

=*Tlie   asoi.^nee  mas''  ^'i'"-  hiijself  of  all   liability  to  the  lessor  for  rent, 
aiid   tlie  covoncnts   in  the  orio-inal  l32.ce,  by  re-as-sicnin,:.  the  lease  to  any 
person.     He  may  do   this     Ithout  jiving*  notice  to    fire  lessor,   or  obtaining 
Ms  leave;    and,  not\<'ithEtandir!G;  a  covenant   in  the  oriG'inal  lease  tha  t  the 
lessee,  his  e:;ecator&  or   adiHinistrators,    shovad  not  j.ssijn  .athout   the 
license  of  t!:ie   lessor*     IThere  is  no  fr2.ud  in  the  asEi:inee  of  a  lease  re- 
assi^-nins  ]iis   interest  -with  a  viev;  to  jettin:^-  rid  of  the  lease;  hence  he 
laay  re-assi^n  it   to   a  beSo^r,    or    a  vjarried  v/onian,   or  a  person  leaving  the 
Idn^'dom  for  the  express  purpose  of  relisvii:!^  hinself  of  liability  uraT.er 
tire  covenants.     It  is  not  even  necesscj'j'  thst  the  person  to  'hora   the  re- 
assi^ir-ient  is  rnade  should   tahe  possession  of   the  irenises,   or  assent  to 
tlie  lease.      In  one  casfe  it  v«.s  held  tirat  c    re-assiga^ent  of  a  lease  raight 
be  la\vri'ully  made  to  a  prisoner   in  a  Fleet,    .''no  '.'as  :i.-aid  a,  sum  of  money  to 
accept  of  the  assio^raent." 

And  to  tire  sane    effect  are  the  otI-:er  authorities  above  cited. 

Ere  renainin,;  .ins tr-..ict ions,   the  ::;x7rjir;  of  ".hich  is  assigned  as  error, 
are  the  folloviix;: 


199. 


"7.     The  court   inctrrcts  you  tl-iat  iu  tliic  case   it  nalass  ao  c'j.fier- 
euce  viaietliG"  I'li.    If  Hand  \cs  a  inc-rried  mrm  or  an  unmarried  man  at  any  of 
tiio   times  mentioned   in   Gie   toctimony,   aiid  you  'vill  therefore  disrejai'd  all 
testimony  as  to  vtether  he  was  a  nai'ried  man  cr  not. 

"8.     Tlie  court  inEtrix.tG  the   jury,    tOiat   tlie   testimony  offered  to 
slio-iV  dilijj-encc   on  the  part  of  defendant   in  produciaa;  \/ritten  evidence  of 
the  assi.'^imont   j.n  min:.t;3nn  In  t3-iis  case,  xfs.s  dii-ccted  to  the    coua-t  and  is 
not  lor  your  consideration.'' 

The  latter  of  tlicse   instrajtions  tut  states  a  familiar  rule  of  evi- 
dence,  aix".  the   oljjoction  to   the  fo^ner  ic  v/holly  uiitonable.      If  the  re- 
spondent  vra,E  a  married  man_he  liad  the  cane  ri^iit  to  assign  and  trangj'sy 
the   leasii  tliat  htJ   I'lad'^tb  dJsposo  of  chattels   generally,  v/ithout  the  coii- 
~s^t~i3f-iilTn7ife-(-Ge3rrl'^sndlord  and  Itenant,  Sec.  183),  and  if  he  vas  un- 
.^^^ried— he -ceulft,    of   course,  maJTO  avch  disposition  of    it  as  he  sav/  fi^. 
It  v;aE"T;herefore  inraaterial  \/hethGr  he  vas  married  or  not,   so  far  as   the 
ri^lit  to  malvs  the  asEij,maent  v/as  corcerned. 

Hiere  are  soi.s   other  points  iaised  in  appellant's  brief,  but  as  -/e 
do  not  deem  them  tenable  v;e  v/ill  not  no\7  stop  to  discuss   them. 


■«-\.c\ 


T 


=A- 


^^^^i^^2^    ^r 


IKie  judgsent   is  affirmed.  T~~*^    *'"^     "^ 

Bunbar,   C.   J.,   and  Stiles  and  Hoyt,   JJ.,   concur. 


~^ 


...J^ 


J#C<5-p 


r    ' 


-^~'  • 


,a^    — - 


200. 


AKDRET;  H.  SI&.Y,  Rcc-pondent,  v.   EAR.Ui  L.  SmY, 

Appc-llant. 

(59  V/ash.   651,    110  p.    549). 

Api-eaJ^Jroni  a.  jydsn:eat._pf_th.e  superior  covart  for  7dn[^  county.   Prater, 
J.,  entered  Jar.uar^'  26,   1910,  upon  tie  pleadiu^-c,    in  a  contcEt  over  the 
proceeds  of  sn  award  in  condemnation  proceedin5;s.     Affirmed.  ~ 

Crow,   J.  —  The  city  of  Seattle  comraenccd  this  action  in  the  superior 
coui-t  of  Zins  county; 'to'CTDadeiaa,- for  street  purposes,   certain  real  ect&to, 
as^the  coranunity  proper tjr  of  Andrew  H.  Stay  and  Sarali  L.  Stay,  hie  wixL-. 
!IIhe  jury  awarded  v3,500  dana:;es  for  the  property   taken,   and  judgment  was 
entered  asainst'  Qie  city  on  July  15,   1908.    for  that  sum.     Sarah  L.  Stay, 
then  livll^  separate  and  apart  from  her  husband,    and  claimins  a  community 
interest  in  the  judgment ,   filed  in  the  condemnation  action  a  notice  to 
the  cleric  of  the   superior  court  directing'  hin  not   to  permit  a  satisfac- 
tion of  tlE   judgment  "by  her  husTjand^    On  OctoTjer  50,   1909,  Anirev;  H.  Stay, 
"bein^:  unable  to  collect  or  satisfy  the  judcment,   filed  against  his  v/ife"^ 
Sarah  L.  Stay  in  the  conderaaation  action,  Ziis  petition  in  interpleader; 
in  \hich  he  allejed  the  condemnation,   the  appearaiEe  of  the  conmunity'lDy 
attorneys  employed  by  hixa,   tho  award  ard  jud^gment  for  damages,    the  filing 
of  the  notice  by  Sarali  L.  Stay;   tliat  a  special  assessment  or  ';G50  had'' 
been  levied  by  tho  city  against"  tho  portion  of  tteir  property  not  tairen; 
that  the  award  v^as  needed  by  him  to  satisfy  such  assessment  and  to  pay 
ojQior__indebtedness ;  ana  further  alleged: 

"That  prior  to  the  rendition  of  said  judgr.-ent  the  respondent  Sarah 
JL^Etay  commenced  an  action  aR'aing t  tliis  respondent  in  the  E^^perior  couit 
of  Kiii,'j  countyT'^^ashington,  for  a  divorce^  being  cause  JTo.    '56,911,   and 
that  upon  the  trial  of  said  catise  a  decree  of  divorce^vvas  on  the  6th  daL-' 
of  April,    1908,  denied  on  the  merits;   that  after  the  rendition  of  §aid 
judgment  in  this  cause  said  respondent  Sarah  L4  Stay  again  commenced  an 
action  in  the  Superior  Court  of  King  county,  V/ashington,  for  a  divorce  on 
the  sar^  grounds  as  in  l:xir  first  suit,   ohd.  in  said  suit  restrained  the 
collection  of  said-  judgTiTsnt,  being  cause  ITo.   61,966  in  said  court;    that 
in  said  cause  judgment  v/ac  rendered  in  said  cause  against  the  respondent 
Sarah  L.  Stay  upon  the  pleadings  on  Hovember  2,   1908;   that  said  respond- 
ent gave  a  supersedeas  bond  and  ^pealed  to  the  supreme  court  of  the 
State  of  V/ashington  in  which  court   said  judgment  was  af  finned.' 

To  tlais  petition,  Sarah  L.  ttay,   on  December  9,   1909,    interposed  an 
answer,   in -liich,  without-denying' aEy^  of   its  material  allegations,   she 
affirmatively  alleged  that  for  more  than  tv;o  years  she  had  necessarily 
and  justifiably  lived  separate  and   apart  from  her  husband,    that   she  had 
maintained  and  supported  herself,  and  that  ho    intended  to  collect   and  ap- 
propriate the  judgment  to  his  o\vn  use  and  e::clude  her  from  its  benefits. 
On  these  pleadings ,    jud^nent  v/as  on  motion  entered  in  favor  of  the  hus- 
band,  authorizing  him  to  collect  and  satisfy  the  Judgment.      The  defendant 
Sarah  L.  E tay  has  appealed;  ■      ' 

Appellant,    invoicing  the  doctrine  of  equitable  conversion,  contends 
that,  by  reason  of  the  involxmtary  alienation  of  the  community  property 


y^  /_    J  ^  ^ 


^^^,^,,,=2^^*-.^*-*^^ 


^ 


201 

in  t::e  couderiiiiatiou  Bi^oceedin^-,   tie   jf.c'.;jjreut  ioi-  damasec  shoulc.  be  re- 
garded ar  c  onjTiuiaity  real  pi-opsrty,   ciad   tl:at  she   sliould  'bG  entitled  to 
have  lier  ri_:hts  to  sucli  ooixiunity  reality-  ac.judicatod  aiid  protected  heie- 
in.     '.Ve   thinl:  the  a^/ard  of  da:ia,j"es  for  -7^1  ich  the  jud^uent  has  "been  en- 
tered should  "be  re^-arded  as  persona^,  property.     Had  tli3  city  v/ithout 
autliori t\'',  ri^iit,   or  license  seized,   trespassed  upon,   or   injured  the 
comiauuity  rcsJ.ty,   and  l:iad  tlie  husoand  and  vn.fe  prosecuted  to  judgment, 
an  action  for  t^re  recovery  of  dsiiacas  on  accoiint  of  sny  resulting-  irgxr;' 
to  the  propsrty,   or  on  account  of   its  iiapairinent  in  value,  a  jiad^r.-cnt 
for  such  c'a-.ir.sos ,  "Kie:!  entered,  v,-ould  unaoubtodly  "bo  personal  prax^ertrr. 
Such  a  j uc'.2):ti.n t  coulc.  "be  collected  and  satisfied  lay  the  hus^band,  v/ho, 
under  section  jQ17,   Rem,  c;  3al.   Code,  would  Tdo  entitled  to  its  nian-ar^e- 
ment  and  control  vath  po-.;cr  of  clionation.     '•'ie  see  no  reason  vhy  tlic 
ju/.^Tixint   in  tliis  condeinnation  proceedinj  is  not  lila>--.,d5e  oomaiiunity  per- 
sonal propertT'-. 

Api-jellant,  ho-.,Bver,   insists,   that  as  one   of  the   spouses  of  th-^  e::irt- 
inj  conm'onity,    she  while  living  apart  frow  her  hus^bond ,    is  entitled   to 
have  her  property  ri^lits  adjudicated  and  protected,  by  an  order  entered 
in  this  action.      If,   as  she  conteixLs,  she   is  nscessarily  and  justifiably 
livin:;-  separate  and.  apart  fioa  her  husband,   on  accoint  of  his  wrongful 
acts,   it  is  apparent   that  sh-e  could  liave  all  property  rights  to  •-hich 
slic    is  entitled,    or   the  i?atter  of  I'jsr   separate  naintsnance  deten.iinedj 
adjudicated  rnd  settled  in  an  action  for  divorce;    or  in  one  for  separate 
Maintenance.     If,  as  alleged,  her  husband  intended  to  appropriate  the 
jud^T.Bnt   to  his  Q-.m  uae  end  deprive  her  of  her  con-nunity  rii,hts   therein. 
she  could  prevent  such  ^vrou^ful  acts  on  his  part  by  invohinj;  the  equitable 
pov;ers  of  the  court  in  an.  action  for  divorce  or  separate  maintenance. 
Eie  allegations  of  her  ansv/er,   if  true,  v,-ould,    in  a  propei-  action  and  in 
the  absence  of   sjjij  foiKer  adjudicc,tion,   entitle  lier*  to  a  decree  of  di- 
vorce and  a  proper  disposition  of  the  coranunity  anc.  separate  property'-. 
It  appears  from  tlx;  pleadinc's,     ho'.vever,   that  it  lias  heretofore  been  ad.- 
judicated,    in  an  action  for  divorce     instituted  by  her,    that   she   is  not 
rightfully  and  necessarily  living  separate  and  apart  frou  her  husband, 
and  tliat   she    is   not   entitled  to  a  decree  of  divorce.      Kie  opinion  of  this 
court  on  the   appeal  pleaded  by  her  husband   is  reported  in  Stay  v.  Stay^ 
53  Uash.   554,    102  Pac.  420.     She  cannot,    in  this   condemnation  proceeding, 
relieve  lieisclf  from  the  effect  of  auoh  foir.er  adjudication  by  formulati^s 
aixl  tendering  issues  \;hich  should  be  tendered  5n  an  action  for  divorce  or 
for   separate  maintenance,   nor  can  sl-je   by  any  such  procedure  prevent  her 
husband  from  e::8rciEing'  his   legal  ri:;it  to  collect  and  satisfy-  tlie  judg- 
ment herein- 

Hie  jud^j-ient   is  afi'iraed.  \ —  o  -i^-      V^  \ 

iludhin,   G.   J.,  2arl:sr,    anc-  llount,   JJ,,   concur. 


202- 

M3IEL  KOCvER  v.  BAVID  J.    CHAIIBERS . 
(3  Wash.    Ter.   26  1607.  ) 

Appeal  from  tlie  District  Court  holding  terms  at  Ol^pia.     Second 
District. 

Tlie  material  facts  are  stated  ia  tho   opinion  of  the  coiirt. 

lir.   Chief  Justice   Greeaa  delivered  the   opiuioii  of   the  court. 

Ihis   is  an  api-eal  from  a  final  decree  of  the  District  Court,  render- 
ed upon  overrui'.in^  a  dsraiirrer  to  an  affirmative  defense   to  k  complaint 
in  equity.     SuJ^t  \vasJ)ro_ij^ht_to  corritiel  tho  defendant  to  comply  v/ith  an 
alleged  3.:jreo\-shi:i  of  his   to  Kicecute  to  the  plaintiff  a  lease  of  a  certa^-^n 
farm.     To~tTKr^lTeG'ati ons   of  the  complaint,    the  defendant,    after  denials, 
pleaded,   "that  the  prem;iJ3es  descri-oed  in  plaintiff's  coLaplaint  are  cora- 
munit;''  property ^^  Tselonsin^  to  the  defendant  and  his  wife,   Elizabeth  Chan- 
bers;   that  prior  to  r-iaianj;  the   lease  to  plaintiff,   and  at  the   time  of 
malring  said  lease,   the  plaintiff  loie-.v  the  defendant  A/as  a  married  man 
living  vath  his  \;ife,  and  that  the  premises  so  described  -/ore  community 
property.'' 

To  this    the  defendant  deranrrcd.     i.  Eino;le  question  is    decisive  of 
this  demurrer,  namely.    Is  a  lease"  in  this  territory  an  encumbrance  upon__ 
real  estate?     For  if   it  be   such  an  encumbvance .   then  tliis  case  falls 
^^5?Ehin  the  decision  in  Jacltson  v.  Eolyolae,   Z  ?ac.  P.ep.  841,   and  the  dis- 
trict jud^e  was  ri^^'ht   in  overruling  the  demurrer;  but  if  it  be  not  such, 
tlien  the  affirmative  matter  of  the  ansv/er  was  no  defense,  and  tl^e   judg- 
ment based  upon  it  is  erroneous. 

In  this    territory  the  statute  of  32  Hen.  VIII.,  uuif.er  which  the 
rights  of  the  remainderman  or  reversioner  to  rent  pass  to  his  assignee 
or  vendee,    is   in  force  as  an  aiaend.isnt  to  and  part  of   tlae  common  la:;  of 
Sngland;   but  the  doctrine   t'.iat  under  the  condition  of  things  there  a 
lease  is  not   in  general   to  be  consideied  aii  encu.nbrance  is  plainly  not 
applicable  to  affairs  in  this   territory,   vhere  the  condition  of   things 
is  v;idel-/  different.      Tliere  land   is   ^•enerally  in  large  holdings,   here   in 
small;    there  lent    is  principally  sought,   here  possession;    there  the  value 
of  land  is  comparatively  fi::3d  and  stable,  here  it   is   fluctuating  an?, 
generally  and  rapidly  appreciating;    there  land  is  capital,  here  it   is  a 
coiOiTioditj- ;    there  its  uses  remain  largely  the   same  fran  generation  to  gen- 
eration, "iiere  they  are   infinitely  varied,    and  changeable  v.dth  evei-y  ne--/ 
possessor. 

\7e  are  therefore  of  opinion  tliat  accoid-iiag  to   the  principle  contain- 
ed vri.thin   tiTeo'ld "and  approved  definition  of  an  enciJimbrance,    a  lease 
^^^t-tr«^-deemed— such  in  fiiis  territory'.     A  similair  conclusion  as  regards 
a  lease   iiTSotitla  Carolina  'aas  reached  by  the  Guprema  Court  of   that   state 
in  Grice  v.  Scarborough,    supra,   thougli  not  by  the   sane   line  of  reasoning. 

Since,    then,    a  lease   is    to  "be  regarded  as   an  encumbrance,    a  contract 


303- 

"by  a  married  man  to  mako   a  lease  of  coiiintviiit;'-  re?.l  estate,  ',/ithout  his 
wife  joinc   iu  the  mauner  pi-escrited  "by  Esctioii  2410  of  our  Cods,    is 
clsarlj''  in  contravention  of  tliG  prohibition  on  the  huc'baiu'.  contained  i:- 

tliat  section,   anxL_j.t__iollO'ii  that  the  case  "be-roie   the  coux-t  is  •./ithin 

wie  decision  of  Jaclzson  v.  Kolyolte,   siipra. 

Let  tl:e   jtid3r,eat   of  the  District  Court  "be  e.ffiraed. 


Turner,   J.,   sx£.  Lan^ford,   J,,   concurred. 


^        ^       ^. 


^6v^  -^ 


^^-^^i^iIZ^ 


-«*-' 


\ 


204. 


ALILCUTDBF.  ILMC&,   SMIUEL  ISAACS  Al©  l1<J'JiH   ILAACS* 
ReEii-^ouc-jutL,   V.  L.   J.  KOLJ'..'i®  .'U'HD  LAIfuTJL  S.   L02B, 
AppeJ.iriitE. 

(4  V.'ash.   54,1092) 

/4013eal   fi'o.i  Su^crioi   Gouvt,   I'ierce  County. 

The  facte  a:'e  stated  in   Gia  oisinion. 

'iliG  opinion  of   tlie  court  i/as  delivered  "b^'- 

Lcott,  J. — ^r.enpondentc  'broiv'jht  cnit  to  recpv9£„twQ_raQ^a.tiis'_xeiat, 
amoimting_tq_^^_OCO,   v/hicli  thoy  claimed  to  "be  due  them  from  appellcnts, 
^gjji  defendciits  bolQ-v,   ''t/  virtue  oi    a_  cartain  lea-o  ol    c  lot  ;:id  buildin^- 
thereon,   in  tiae  ait;^i'  Tacqma._     The  lease  wac  e::ecuted  in  due  fom  on 
tlie'btn  day  oT~July,    IGGS,    to   ta.l:e  eifect  on  the  firct  dr.y  of  5epte/a"ber 
following,    sid  to  continue  for   the  period  of  five  j^'eai*::;.     Ihe  defendants 
went  into  posses liion  of  the  premises  thereunder  and  coitiimed  to  hold  the 
Sgne ,' and""lp3ricr~tli est ipull.atec'.'r en't"" thei'of or ,  SSOO.OO  per  month,  until  tix- 
inoi.th  of^u^sT,  "16Sl,_i5Ii.iiiGi'i  tine   they  rofused  to  pay  the  rent  sny 
lon,g^3r,  and  the  respondents  suTDcequenti;' "orou^at   this  action  to  recover 
t'le  lent  "du^ ■  x or  "tlie  mon^rs^of  Au.j.i.ct   aiC  September.     The  defendants  "in     IN  o^> 
their  ans3ver_£,ili3:,^dr  that  t^^  plrinti-rfn  v,-m-p>  v->p -.■■;-;  ^r*  ■■-^•^,   aid  set  uE__fe;ie         ^- 
^ecessaiy  facts  to  vho\:   iii;.t_the  property  lec-sed  v;-.e  at  all  the  times 
specified  coniinunity  property  of  the  plain  tiffs  j_ezid  their  said  •■•ives,    czicl 
alleged  that  said  purported  lease  'i^as  void  'Decause  tlie  same  lizA  not  hoen- 
e::©cuted  by  fh©  T/ives  of  olie  plaint  if  f  s . 


Appellaucc  contend  tlift  bj"  res.^on  of  tlie  premises  stated  no  action 
coulc7"^'niainti^inecl  on  Xiisr  lea^e,   slid  cite  Hoover  v.  Charibers,   3  'Tash.   2 
UG^tl^'^acTIlGp".  217)7  £^iiHolyoi:o  v.  .Taclrson,  5  Uash,   1'.  255   (13  P?.c.Ilep. 
041),   in  support  of  their  pordtion.     ".hile  pocsiblg'  there  may  "be  some- 
thing sc.id  in  t>^  opiniono  rendered  in  those  cases  which  would  in  a  mea- 
sure justify  tliii.   contciition,   3'3t   the  facts  here  are  so  essentially  dif- 
ferent fro„i  the  facts  in  ei  iiaer  of   thot-e  cases  that  we  do  not  regard  them 
as  applicable.     In  the  first  case  sv.it  "/as  brou;Jit  to  compel   the  husband 
to  e:;3cut6  a  le-rso  of   C0ui:u;.iit:"  lands   in  coroplisiice  'vitii  zn  asreement 
made  by  I. in.     'ZiQ    .■lie  was  not  a  p.^rty  to  the  a:<;ree/ii3nt,   and  tiie  court 
refused  to  compel  t-e   e::ecutiou  of  the  lease  on  Zie  ground  that  the  hus- 
band had  no  po-./cr  to   lea.se  co;;^.iunity  lands,     Eie  lact  case  v.'as  an  action 
bro'.ijht  to  co..ip9l  the  specific  perfor..irnce  of  a  contract    enternd  into  by 
the  husband  to  bell  ccuv/oaity  real  est:  to  oi   for  driiia^ss.     It  vra.s  sub- 
secpaently  rebolved  into  an  action  for  djiaajes  only.      Z'lC  defence   :.et  up 
was  tliat  the  contract  was  -.nade  './ithout  tlte  IcnovledS'e  cuid  ajaiiist    the  vill 
of  the\.lfe,   s;?.d  that   she  refused   to  join  in  the  sale.     The  plaintiff  knev; 
of  the  aarriai'e  ^el-.tion,  aiid  that   tlie  \/ife  liad  not  cons  m ted  to  the   sals, 
and  that  it  v;aE   caa.iunity  property.     'Ihe  money  which  l-iad  been  paid  was 
tendered  back  ^.ith  interest,  end  it  v/as  decided  tlict  the  plaintiff  was 
not  enti  tied  to   the  i  elief  demanded. 


.....    -.-T  -I 

•  I .  ■■     ■  ■  J  '■ 


■■XI  :-,r 


205. 

In  Gie  case  at  bar  the  wivet.  of  the  plaintiffs  have  at  no  time 
appeared  upon  tiiG  soeiae,  nor  did   they  in  aijr  manner  interfere  v/ith  the 
defendantc*  use  cud  enjoyment  of  the  property.     Tlie  lease  contained  the 
follovans  covenant: 

"AM   the  said  parties  of  the  first  part  covenant  tliat   the  said  par-"!, 
ties  of  the  second  part,   on  paying  the  said  raonthily  rent,   and  perfomin^ 
the  covenants  aforesaid,  shaJ.l  and  may  peaceably  and  quietly  have,  hold 
and  enjoy  the  said  demised  preniises  for  tlie   term  aforesaid." 

Wliile   the  husbr.ndc  could  not  e::ecute  a  valid  leace  of  community 
lands,  we  do  not  th?.nl:  this  rear-e  was  absolutely  void.     If  the  defendants 
had  been  ousted  v/e  see  no  sood.  reason  vdiy  t>£y  could  not  have  maintained 
an  action  for  doma:^e£i  u:,;ou  the  breach  of  the  covenant   for  quiet  enjoyment. 
It  does  not  appocr  tliat   thq/  imov/  the  plaintiff -were  garried  aen,   or  laew 
the  property  v/ao  conKvonity  property  when  the  lease  was  er.ecuted,    so  tliat 
it  TTOuld  be  contended  they  stood  in   the  position  of  :;illful  violators  of 
the  lav;. 

^"/e  are  satis fisiied,  the_def a:x".a:it>:^co:^d  not  avoid   the  pirf on.x-nce 
of  the  teras  of  this  lease  upon  their  payt  without  first  demandiiij  a 
valid  lease  fro.,!  the  pl.^intiffs^    ,md   it  co'es "not   appear  thot    they  ei..\  t:-i£ . 
■'^e  are   also  of  the  opinion  that  where  a  husbsix'-  e::eci'ted  a  leasee  of  co:s- 
m-jnity  lands,   t:iereb3r  Luidertalcino  to  e:,ercise  a  po-'er  that    the  la.'  does 
not  vest  in  him,  end  in  violation  of  the  la"',  tlie   tenant  •.ho  has  talten  the 
lease  not  i<na:in^'  that  the  lessor  ■./as  a  married  men,  or  that  the  Isnd  pur- 
ported to  be  leased  -./as  comraui^-lty  property,   or  if  laiovdn-  it,  havin^^  false- 
ly been  led  to  believe  that  the  husband  h^d  authority  to  lease  the  s:une, 
upon  lear'riJLi?^  the  facts  should  be  permitted  to  demarxl  a  valid  lease,   a'-f- 
if  refused  him  to  the..  aba:ido:.  the  premises   if  he  has  tahe^-  possessio.., 
aiid  :-.ot  be  held  bou:-d  to  pay  the  re:.t  after  such  dema:-d,   refusal  a::id  sur- 
ro:der.      It  v/as  coriceded  upo-  the  ar^Uine-.t  of   this  case  that  these  te:^..ts 
wore  ocGUpyi::-;  the  proper tj'-  i::  i^uestio:.  for   tlie  prupocei   of  trjde.     A 
merca^'.tile  bU£i:_ocs  if  cuccessful  usuall?/  becomes  more  valuable  -.rith  the 
lapse  of   time,  a.id   i:.  bocomi:.s  establithad  i:.  a  permai.eiit  locatio:.,    a 
considerable    time  may  be  required  i:.  which  to  establish  a  busi:-OEs,   a..d 
make  it  profitable,    i.d  at  the  comiTiei-cemei-t  a:>d  for  more  or   less  time 
thereafter  it  nay  ".;ell  be  a.  source  of  e:::^:e;-se  rather  tha:.  profit,   a_x.  the 
profit  o;.ly  be  derived  after  co:.ti:.ui:^  therei:.  a  sufficiei.t  le  .^th  of 
time  to  becor::e  Is  ov.i:  a:-d  established.     The  co:-.tiL.ua:-ce  i:-  oi.e  locatio;. 
\TOuld  ordi:-.£xily  be  a-  importii.t  factor   ii.  arrivi-:^-  at    this  result,   a:-d 
certai.-ly  or.e  vaio  has  leased  premises  u;-.d.er  such  circui:ista:-ces  for  a  loi^; 
period  of    time,   :.ot  Ic.owi:-'  the  facts   so  ths.t  he  hLrxelf  -..Duld  stii'xL  i:. 
the  position,  ^f  a  wi-oiis  doer,   should  not   be  cor.-pelled  to  co::ti:.ue  there- 
i:.  a:;d  lay  out  money  at  his  peril  or  at  a  loss  with  the  prospect  of  h-av- 
inS  his   business   sacrificed  after  ectablidii:^  it  at  the   a-.:pe:.£e  of    time 
a:"id  money,  by  bei:.:G>'  ejected  from   Gae  premises  by  the  avi^rs,   or  tliat 
after  a  demai.d  for  a  valid  lease  a:.d  refusal  to  Give  one,   thc't  he  should, 
be  compelled  to  remain  in  possescio:.  until  notified  to   suit  or  procesdi:<^"s 
should  be  instituted  to  eject  hin#     A;i  estoppel  mi^ht  arise  against  the 
'■•ives  upon  learn.in^  the  facts  ui.less  they  in  due  time  made  some  eifoit 
to  obtaiv.  possession,  but  the   tenant  should  not  be  compelled   to  wait  for 
this  to  dovolOj;^.     If.  however,   tlie  tenant  toiovdn^  the  facts  sliould  con- 


206 


tinue  to  occupy  ths  premises  he  could  :iot    set  up  the  invalidity  of  the 
lease  as  "a  d^feTis'e  to  airactTcn  for  the  recovery  of   the  rent  stipulated, 
"a-A  this   bri::i?s  us  JlO— the-cn-sl(f.eratio::  of  a  further  question  in.volved  "ii; 
the  determinatior.  of   this  ca^e, 

CEhe  jud3ne;.t  is  reversed,  ei.d  the  cause  remaixLed  for  further  proceed- 


1:15s, 


A:xLer£i,   C.   J,,   a:id  Du::bar,   J.,   concur. 


\: 


^ 


207, 


JCfllT  E.  KTJtt-HRTJS,  .RonpoLde-t,   v.  lilSWJS 
S0R"1^3'Jil  et  ale,  Appella;itE. 

(35  Wash  553,1903) 

Appeal  from  a  juclr^meiit   of  the  superior  court  for  Spok2.;ie  cou;;ty, 
Pratier,   J.,   eitemd  Llarch  29,   1902,  upo.i  fii:di:-5s  made  b^r  the  court  iii 
favor  of  (lQfeix.a.-.:t£  axto.-  a:iRnh3T-c'ii^   the   jUiyjJLis/.iiELi-..^-  a.,  actio:-  to 
recover  the  possession  of  resl  estate  a; id  to  cuiet  title.     Reversed. 

Per  Curia.n.--5his  action  v/ac  iDe.'^u:.  iu  the   Eupei-ior  court  of  Spolca:.'? 
County  by  recpoi-dsi.t  Joh:  E,  Eu'iiphries  against  appellai-ts  r.aEi.iuE   Sorenso-.i 
-Ai^tar-M.— So^errs^ir^  his-^fe,  Ililton  Shbwalter,  azid  Abbie  Eho-.valtev,  his 
•.vife.     51ie~re£j?o:Ld3nt_r_^his  coiTijpIaL-t  alleges,   that  he  is  the  ov;i^er  in 
fee  simple  of  g 3i  tlxriands,    in  t/ie  above  count j';    that  _in    uie  rnontli  of 
Deoeniboi^^l&fST—pp^llarit-g-It&srnus  aiid  A;r-a  M>  Sorenson  ■;ro32f'^''-lly  a^-^^- 
u:ila\vfully  entered  into    fclie  possescion  of   such,  real  property,  ai'-d  ha^/e, 
ever  since  that~frin!ey  erolier  by  d'emselves  or  ^oy  sppella:itE  Milto^.  Cho*:* 
waiter  and  Abbie  Sho-valter,   been  in^^io  possession  thereof;    th?t   eiae  Lho- 
'r-alters  are"  in  the  encf:u£i.ve  possession  of  such  property;-,   claiming  to"~liOld 
th3  same  under "ar 057. tree t  of  purchase  mth  the  Sora^isons.     Her,po::dent  dr- 
mxided  jud^-meiit 'f br'pcssGssio:i,__dai;iagsc  for  vvrori^ful  det"eii.tion,  that  his. 
title  in  s  ich   lands  be  caiieted  as  asair.st  iJ.1  claims  of  aFpellaiits  there- 
in,  that  he   recover  costs,    3..d  have  all  otlier  ziA  further  relisf- 

Appe  13  aj-;t s ,   by  their  amended  aiisvirer,  den-jr  i^espon.ds:  .t*s  ownership  a;-n 
r^3ht  of  pOEser-sian  to  the  premises  in  question,    the  \»-roi^'ful  entry  £-d 
wit:i}ioldin27~a:^Td-'tli3  claijTi  for  daa^ses;   a.d  adait  the  possessio:-  of  the 
~Shc\/alters~unds?  "a>,o;itraot  of  purchase  v/i  th  the  Sorensons.      I.t  v/as  lur- 
tlier  alleged"i:i~tiris^ancv;er,  that  on  the  19th-   day  of  Au^'ust,   18SE, 
Catherine  L,  Loree,   then  bei:i3  the  avner  in  fee  of   said  la:ids,  mort^a^ed 
tha  same  to  J„  IL   Gri..S!;ead;   that  on  the  iOth  day  of  Q:'to"oer,   1892,   she 
coiiveyed  the  land  in  question-  to  D.  J,  .Lee;    that  such  mort^ase  ^/as  after- 
wards foreclosed  in  a  eartain  actio::  instituted   rn   the  superior  court  of 
£polia::a  couiity  vfiierei::  J^  II.   Grinstead  was  plaintiff  a::d  Gathori..e  Lores, 
Moses  Loree,  a::d  T.J.  Lea  v;ere  defe:.da:-tc ;   that   on  the   29th  das'-  of  X»e- 
cwmber,    1896,  appellant  Hasmus  Sore:iEo:.  purcliased  saicL  property  at    the 
sheriff's  sale  o:i  such  foreclosure  proceedi:i2s;   tliat   slicli   sale  v;as  after- 
v/ards  co::firm6d,  szid  a  deed  enecuted  to  purchaser   {Sorev^so::)   o:i  Iiecember 
30,   1897,  a::d  filed  for  record  in  fiie  auditor's  office  of    the  above  cou:--ty 
ac  that  date;    that  he  e-nterec.  i.i.to  pos session  uij.der  such  sale  a.-d  deed, 
allesii:^  title  in  fee  by  virtue  of  sixh  proceedi-^ss  a:-d  deed.     AppellS^itc 
prayed  th;tt  reEpo:xdent  take  nothi:.^-  by  tiis  action,   th?,t  appellai-t  Rasmus 
Sore:iEo:i»s   title  i;:  tliis  real  estate  be  raieted,  \;ith  costs   ta:ed  as^i:-^t 
responde:it. 

Respoiide:-t,  "bj  his  reply,  deiiies   the  material  alle:iatio:;s  of  nevv 
matter  alleged  i;-.    Qu  above  a:isv;or,   a::d  alleges,    that  at  all   the  times 
mentioned   t:-:er3i:i  Hoses   a:id  Catherine  Loree  nere  husba:  .d  sad;  -:ife;    tliat 
the  mortgage  give:i  to  Grinstead.,  ar^  the  :.ote  tlierei:.  mentia-.ed,  v/ere 
signed  i.^  tlie   name  of  Gather i:i3  Loree  by  Koses  Loree  v;ithout  authority; 


208. 

that  uo  payiae;ios  v;ere  rnade  itpo:!  said  note;   &.'!  th2.t  rnore  tlaa;:  si::  yss-xs 
lisve  elai^ced  si:.ce  the   .rrturity    ulaereof .     Tlie  cause  ca:ne  o:.  for  trial  be- 
fore the  court  a-id  a  Jury,     At  the  co:.clusiO-.  of  the    tectinouy,   re£po:x^.G.t 
mox'ed  for  a  dii'ected  veraict  i:i  his  favor.     'Siereupo:;  the  trial  court  dis- 
charged  the  juiy,   aiid  recuected  respoiideixt's  cou;-.&el  to   '"prepare  the  find- 
ings si'.d   j-a::jnQ.:t."     Mr.  V.eGtfali,  appc?.la:.tE'   co'X-sel,   the:,  stated  in 
ope;i  court:      "a:xL  we  ctu^  have  ^.i  e.;cG^-tio:.  to  each,  ai-i'',  a.'^d  every  fi::diL^'' 
Pi;:dii:^s  of  fact   a.d  caiclutions  of  ls^••,  •"dth  form  of  jud^ineiit,  -/ere  pre- 
pared a;:d  served  o:.  appsllo-its"   coo;-£el  Harch  28th,   1502. 

The  cohiiio:.  soitrco  of  title  to   the  l?.x.  i:.  co:.trcn,-ei£;y  v/as  x:.  Moses 
loree  a::d  Catli.^ri::e  Loree,  husb  -:d  a.-d  vdfe.     Kis  appella^.ts,  havever , 
cor.teixd   tl-iat  this  real  ettate  never  "belor^ed  to  'che  hus !)£:■/.,  iDut  was  ithe 
separate  property  of  the  v/ife    (Catl-firi'ie  Loree),    .'hich   ca.tentio:.  ./ill  Tse 
considered  later  on.     Fro.i  the   testimony  adduced  i:'.  the  trial  court  on  "be- 
half of  respondent,   it   appears,   t:;i5t  on  tlie   14th  day  of  iipril,    18S2,   SclDin 
AlDhott  aiid  vvife,  "by  warrs^ity  deed,    conveyc^.  thy  premises  in  question  for 
the  co-.sicLero.tion  of  }2,j00,    e;5>res£ed  i::  liie  d.eer.    to  Ca'a^eri^'.e  Loree; 
tiTat,  at    uie  tine,  Ho^es  ana"   Cat!x-rine  Loree  -'ere  huE"b<.n.d  ai.d  wife,  resid- 
ents of  the  state  of    /ashi:xi'ton;   tiaat  on  £epte;Aer  4,   1694,  Clias.  K.  Kc- 
Grev;  recovered  judQne.it  for  '!;397,65  a:-d  costs  acainct  Hoses   sxL  Cathsri:^ 
loree,   in   the  s  uperioi    coui't  foa*  "Valla  walla  cou:ity;    that  o;.  .april  o,    13S>j, 
a  traiascript  of  this   judGtr£;-t  -"/as  filed  a:dL  docketed  in  tlie  cler^r's  olfice 
of  the  superior  oorxt  for  Gpoicaiie  cor.:..tj-;   thc-t  o:.  Mcach  17,    1896,   the  jud:,- 
ment  -Jas   assiG,:-.ed  to  Lillie  Sa-::;er:   th,:  t  o:.  Ju--.e   5,   1896,   elocution  israed 
out  of  the  latter  com-t  on  such   transcript-,   tliat   on  J'oly  11,   1896,    in  pur- 
EuaiKie  of  Evch  e-ecation,    tiic   sheriff  of  £pc!a:-e  county  sold    the  land  in 
question  to  Lillie  Eaji^er,   sixL  such  sale  v/aii  confirrned  "by  the  superior 
court  of  Spolcai^e   county  o.:  Septemljer  21,   1895;   tl:&t,  purs-^av-t  to  such  pro- 
ceediiiG's  ,  o:i  Janus.ry  8,    1901,   the  sheriff  of   that   coun.tjr  er.ecuted  a  deed 
of  said  preroises  to  respondent  J.  E.  Humphries,   assi^'nee  of   Lillie  Sanger. 
Eespoiide:it  hases  his   ri::.ht    to    recover  in  the  action  at  tar  "by  virtue  of 
such  deed  forcided  o:.  these  prior  proceedings. 

'Hhe  mortjaGe  set  iip  in  tlaeir  amended  ai-s-'er  v;as  foreclosed  upon  these 
premises  on  tlie  theory  tliat  Catlierine  Loree  -v.'as  ti:e   sole  o-.-v.er  thereof. 
On  appella::ts'   behalf  the  evidence  s.javed,  tliat  the  mort^ac^'S  v;aE   enecuxed 
by  Catherine  Loree,  per  Lloses  Loree,   under  a  po'/er  of  attorney  theretofore 
G'iven  by  the  wife    to  the  husband;    that   Catherine  Loree  en.ecuted  a  co;:vey- 
2.\ce  of   the  pre.iii&e&  to  ii.  J.  Lee,  as  alleged  in  taid  sa.£-jer-    a:id  that 
tlie  mortsase  \7as  foreclosed,    sale  had  axa.  corifi-.-3d,  and   Gie  sheriff's 
deed  of  the  premises   e::ecuted  to  Rasmus  Sorenson;  and  thf.t  possession  there- 
of-.Twas   t.ken  by  appella:.ts    in  pursua::ce  of    tl^se  proceedii.js  prior  to   the 
commencemeut  of  the  present  action,     T:xq  evidence  also  shovec.  that  vaien 
the  mort:;a3e  was   enecuted  to  Grins tead  by  Catherine  Loree,   a:id  the  deed  of 
the  latter  made  to  Lee,    the  real  estate  in  c^ucstia:  -whe   the  coriiTU-.ity  prop- 
erty of  Liosec  a^id  Catherine  Loi-ee;   a:\C.   aie   trial  couit  so   foaid.     Sie  co^t 
also  found  as  a  conclusion  of  la-/:      "Tliat    2ie  jud^nei.t  of  plaintiff   (re*« 
spondent)   asaList  said  itoses  Loree  a::d  Catherin.e  L,  Lores  T'as  a  valid  lie:. 
upon  said  laiiC-,  ai'd.  that   the  ezecution  is  cned  thereoi.  was  duly  a:^!  ie::,-'-.laJ.-- 
ly  issued, a:i.d  the  proceedir/^s  thereu:idea  ao..-n  to  s^jA  i;xJ.udino-  tl^e   issuance 
Of  sheriff* s  d^oeC.  to  tie  plaintiff,  -'ere  duly,  resularly,  properly  Iigd   -n.d 
3nad.e«"     Appellants  enceptod  to  this  conclns  io:.  of   la"',  a:Td  allege  erior. 


c^ 


209. 

Upon  tlE  correctnesc  of  this  ruling  depends   the  ri^ht  of  rcspond- 
ent's  recovery  i-i  thz  case  at  ''opt.     Iu  Hurray  v.  BrijG:^ ,  29  ^/ash.  2Ar5 , 
69  Pac.   765,  thifs  ciourt  held,    that   in  Cie  absence  ol  ctatutory  authOx'ity, 
an  e:;:ecuticn  caaiiot  legally  is  cue  on  a  irare   transcript  of  a  jud^irjent 
filed  in  orje  couv.tj'',  sliov/iu^j'  the  ori:;jinal  jud^ireut  to  have  "been  rendered 
in  aaiother  counts'-;  al^hcu^Ii,  tha   filinj  ol    such  transcript  hy  virtue  of 
Bal.   Code,  Lee.   5^.o?,.,   creabes  a  lien  upon  the  debtor's  real  estate  in 
the  county  vix-ro  fiied;   that  e::ecation  sales  "based  upon  such  transcripts 
are  void.      Eierefore  \7D  conclude  f.^at  respondent's  ri.3lit  to  recover   in 
the  case  at  har,   "bein^-  founded  upon,  tlie   cheriff 's  deed  to  hiin,    in  pur- 
suaixe  of  Gie  sale    d'   th<"^  propertj,'-  in  cueE-tion,    on  e::ecution  issuiii^'  out 
of  the   Euper^'.or  court  of  Spolraiie  county  on  the  transcript  of  the  judg- 
ment rendered  in-'ialla  lialla  county,  ir.ust  fail;   that  such  sale  and  pro- 
ceedings v/ere  void;    that  thxC   learned  irial  coui-t  erred  in  holding-  th^t 
such  evieoution  v>»3.s  L-alj  aoid,  re2,ularly  issued,  aif.    Giat  the  proceeding 
had  in  pursuance   thereof,  down  to  aiiL  incJ.vx^an^  the.  issuance  of  the  sher- 
iff's deed  to  respondent,   v;ero  regular  and  valid. 

If  this    ic  the  proper  oonstnxitxon  to  te  placed  on  these  proceedings 
and.  this  deed--and  we  so  hold — the  respondent  is  not  entitled  to  recover 
in  thiF.   action,  for  want  of  title   in  hiinself .     It  is    immaterial  v*2ther 
appellants  have  shown  title  in  ths-nselve^  or  not.     The-  respondents  must 
recover,   if  at  all,   on  the  stiensth  of  his  oTvn  title,    and  not  on  the 
"v/ealmess  of  tha-t  of  appellant.     Ktishes  v^  Sou  lib.  Bay  School  District,  Ho. 
11^   52  ^iash.   573,   75  Pac.  778.     T'.ie-  e:ecution  ir.s:u.in2  out  of   the  superior 
court  in  Spolanf;  counter,   aiid  all  proooedin--;G  had  under   tiie  •rrit     vrare 
i?.ull  and  void.     It  is  en  a;:.i.om  of  lav;  as  well  ac  in  physical  science  tliat, 
"Life  cannot  he  hEeathed  into  a  dead  thing.'* 

The  appellan.ts  pray  in  their  ameixled  aasvmr,   en  viiich  they  tal:e  the 
hurden  of  proof,  uudex-  the-ix  aff irmat-'.ve  6.e-pQ:ap.&,  that  the  title  in  fee 
simple  iu  this  land  he  cuieted  in  appellant  Ka:5r:ari  Sorenson.     2taey'  allege 
that,  at  the   times  when  the  mortsa^fi   to   Grins tead  sad  the  deed  to  Lee 
■were  executed  hy  Gather ino  Loroe,  the  v:as   tie  owx'er  in  fee  of  this  real 
estate;   and  appellaiots  atteixgjt  to  esta'clish  title  in  tlieraselves  "by  virtue 
of  the  proceeclin^js  alleged  in.  such  ansv;er  as  to  the  foreclosure  of  tliat 
mort^ase,   sxL  Ea3.e  and  sheriff's  deed  tliereunder   to  appellant  Kasmus  Sor- 
enson.     V/e  are  of  the   qp.-^.nio.ti,   i.hs,t  the  reccrd  fai.ls  to  sustain  the   is- 
sues tendered  by  appellants  under  such  defense;  that,  under  the  testi- 
mony adduced  at  the  heaiv'.rv3:  in  iiio.  sv^pericr  court,   this  real  estate  \\ras, 
at  the  tines  atcve  noted,  the--  c.on^Mnit5,-  property  of  Moses  and  Catherine 
Loree,  and  not    Sie  separate  pro3->'5r^y  of  '^i;;a..Ti'^'.  (Catherine  Loree);   that 
the   trial  court  coinmitted  no  error  in  so  finding,   and  in  adjudgin:;^  such 
instruments  antl  proceedi-^ngs  invalid.;  and  therefore  we  cannot  grant  ap- 
pellants  the  afiirtnatix'e  relief  for  which  tiiey  pray. 

Hie  respondent,  hov/ever,  cannot  recover  "becajipe  of  his  failure  to 
sliow  title   to  this  land,   or  ri^Jit  to  the  possession  thereof,   in  himself 
at  the  corarnGncasent  of  this  action. 


Tlte.  judgHEUt  ox   tlie  euperior  court  shov.*^y  be  reversed;   sni^  the  cause 

ikt ' ! 


remanded  hi  ^i  directions  to  ditMcs   tlie  action  at  rssponaSkt ' r>  costs^   and 
it  is  so  ordered.  — 


^^ 


210. 


L.  H.  AUDEESOTI,  Recspondont ,  v.  D„  E.   BIOiLOV/ 
et  ur.^,  Appcllaut-s. 

(16  '.fesh.  19B.)        1696 

Appeal  from  Superior  Court,    Hiiurston  County. —Hon.   T.  M.  Reed,   Jr., 
Judse,     ReversGd. 

Hie  opinion,  of  tiie  court  v^as  delivered  "by 

Hoyt,   C^  J. — The  action  was  brou^lit  to  recover  damasos  for   tlie  al-:_ 
le.-^d  treacli  of  a  covenant  of  v;arraa.ty  contained  in  a  deed  made  Tjy  appel- 
lants  to  respondent^  H-ie  covorwiat,   viiioh  it  was  claimed  i^jd.  teen  'brokea, 
v.-as  f  or  qUJoU'erjoyrront^  and  tlie  G"rou;id  of   Qae  claim  \Tas  that,   at  the 
time   the  dend  K^iiT^delivgred,    the  property  descrited  .t]:;erein  had  teen  dedi- 
cated to  puVLio  use^fOT  'the  pu.fpo^^es  of  a  street.     Pl?antiff  sought _to 
^tatlish  the  fact  tST;  the   iLa'^il  hz,d.  "been  r.o  dedicated  "by  evidence  tend- 
ing to -Ell  ew  acts  on  til  c  ;gaTt  of  the  defondasts  which  estopped  then  from" 
denying  that  it  liadHjeen  so  dedicated.     He  5lT.o  claimed  tliat  t!h&  fact 
tliat  the  land  load  been  so  dedicated  hrd  'boeii  determiaed  in  a  certain  ac- 
tion in  which  joe  v.-as  plaintiff  an.d  oi-.e  Panrjer  viras  defendant,  and  that  th.e 
defendants  were  so  co/:.Jiected  mth  that  action  that  tliey  wore  "bound  "by  the 
decision  rendered   therein. 

Upon  tie  firt;t  proposition,   Kiere  v;as  evidence  introdijccd  tending  to 
shov  that    file  def^nd.?nt  D.  R.  Biselo^/  had.  made  statecents  to  those  a"bout 
to  purchase  laid  in  the  vicinirj-  tlia.t  the  land,  in  question  liad  "been  set 
aside  for  street  purposes;  "bub  there  was  no  evideixo  tendijog  to  show  that 
the  defendant  A,  E,  Bia-Glov/,  \b.o  \/as  the  vin.fe  of  the   other  defendant,  I:ad 
done  or  said  anythin.;.     But   it  was  slio^n  tliat,  at  tl:i&  time  D..  R.  Bi^elow 
made  the  decjao' attend  relin;d  iX£.on,  he  hold  a  power  of  attorney  from  his 
■wife  authorizi:.v-;  him  to  £eli  her  real  estate,  receive  payment  therefor, 
aad  make  conveyances  tlicreof . 

!I!he  superior  court  instructed  the  .iurj'-  that  the  wife  v,-as  "bound  "by 
the  declarations   of  h-or  hxi^lranc'.  "by  reason  of  having  jiven  him  this  poi-^r 
Of  attorney.     I'here  was  .noth.i^^s  in  sucii  power  of  attoro-e'v;  which  gave  de- 
fendant B.  R.   Bigelow  aiithoriitjr  to  d.o  more  than  sell  tlie  land.     Oliere 
v;as  noGiing  said  therein  alx>iri-  riattjng  it,   nor  ab:>ut  dedicating  ans  por- 
tion tlioreof  to  the  use  cl   the  pu"blic.     And  while  it   is   true  that  the 
setting  aside  of  one  porticn  for  street  p'jrposes  might  have  added  value 
to  other  porti.a-i's ,   j-c  might  the  uonvc-yai.ce  of  one  portion  to  an  inc'dvidual 
for  a  certain  puri^or-e  have  adac.d  va\ua   to   otlier  portions  f^r  other  pur- 
poses.    But  the  fact  tiiat  one  trn-^t  had  been  sold  for  a  certain  purpose 
\i.ould  not  aithcrize  the  attorney  to  convey  ajaother  portion  without  receiv- 
ing value   therefor.     Zie  general  p')\;er  to  sell  did  not   authorize  the  per- 
son acting  thereurider  to  males  a  dedication  tor  street  purposes.     See  Du- 
pont  V.  Werthcman,   10  Cal,   554;  Ilotb  v.  Smitli,    16   Cal.   551;  Randall  v. 
Duff,   79  Cal.   115   (19  Pac.   552). 

The  court  held  that   tlie  allegations   of   the  complaint  as   to  the  judg- 
ment ip.  the   other  action  and  as  to  its  effect  liad  not  "been  denied  in  "the 
answer,    aad  that  unless  defendants  had  shown  tl^t   it  v.as  collusive  and 
fraudulent   they  were  "bound  tlieroby.     It   is  not  uecessar,-  for  us   to  deter- 


211. 

mine  as  to   tlie  cufficiency  of  tlie  denial,  for  the  reason  tlTat     e  are  ol"  t'sj: 
opinion  that   the  alTie^'atio^is  in  the  coinplaint,    if   ajdmitted  to   "be  t:.uej 
^/ere  not   suffioierit  to  ciiov/  tliat  the  deienuants  v/ere  bound  "bj'   the  jud^-..:3Mt. 
TiiB  only  Gtate:ronl:  tendfn^  tc  connect  the  dofeudantF.,   or  either  of  thsm, 
7.'ith  the  actionj    wr.s   tha'''.  during;:  the  pendency  tliereof  they  had  itill  notics 
and  knowledge  of   fho-   sov-cral  matters  involved,  anc\  tliat  the   said  defenda_t 
D.  H.  EisQlo>7  att ended  upon  the  trial  of  said  cau&e  and  v/as  a  vatness  there 
in  in  behalf  of   the  .Plaintiff;  and  tZiis  was  not  sufficient   to  shov  such 
a  demand  upon  thsm  to  appeaj.-  and  procectite  the  axition  as   to  iiialre  then  re- 
sponritle  fo,-.:  --.he  resul';.     And  v/hatever  nay  be  tlie  fotrce  of   a  juf'-jnent 
a^'ainst  a  defenda-it  to  tlie  effect  that  the  plaintiff  had  a  title  parcxnor.nt 
to  that  con-voycd  by  tlie  deed  under  r/hich   such  defendant  held,    /hers  tlie 
grantor  tl^re^'n  has  not  been  re3;u3.arly  called  -upnn  to  defen;l,  no  case  can 
be  found  whe.rs,  luider  such  circunistances,  a  juc'igrneut  asainj;t  a  plaintiff 
in  favor  of  a  dbf.-^ndaat  has  been  held  to  in  an:y  manner  ai'fect  the  ri.^its 
of  tlie  girajitor  ?.i-i   the  deed  iinder  A/hich  the  plaj.ntiff  claimed.      In  iact.,    it 
may  vrell  be  questioned  "^.ether  a  grantee  \^!ho  sees  fit  to  voliunt.^-xily  so 
into  court  is  in  a  situation  to  have  any  riGJ'its  established  in  an  ,e£tion 
thus  voliratavj  ly  bjrou^ht,  v/hicli  shall  have  au-j  ef^"ect  in  an  action-  brought 
by  him  a^ai/o&t  his  srcaitov.-^    Au3.  it  is  certain  that  a  jvid^inent  rendersd  in 
such  an  action  to    /hit-h  Uie  grantor  is  not  a  party  and  in  v.-luch  he  ha.s   -tot 
been  le:;ally  noti5'-'e''!   to  protect  the  title  conveyed  by  his  deed  is  not 
even  prima  facie  evidence  in  an  action  brousht  lay  the  grantee  against  the 
Srantor. 

The  judcjnent  must  be  reversed  and  the  cause  remanded  for  a  ne-.v  trial. 


Scott,   J.,    concurr. 


,,.^-*--<--;j-t^-*»->-^.^B'^ 


212, 


RAStlDS  KOKHEliUli',  Appellant,  v,   J,   C.  FRAUDSELT  AKD 
ELIZABETH  FHAHD&EN,  Bespondeats, 

(8  Wash. 551,   1694) 

Appeal  from  Si-Tperiar  Court,   ICing  County* 

The  opinion  of  the  court  a'iS.s  delivered  "by 

Dimhar,  C.  J. — The  a^pollant  coatraatgjL.  I>ferch  14,   1690,   to  clear 
certain  l&g^s  T3eloi3gin3jbo_defepd£nts^  antL  to  receive  in  JBai/ment  c s rtCin 
othaF  lands  d3 scribed  in  the  coniplaintj     The  s^reerne-nt  was  reduced  to 
■jTitinG.  and  signed  by  J.  C.  Frandsen,   tlB  husband  of  the  coidei eudant , 
SlizabetirPraaasen. — ^^It  ic  conced".ed  tloat  the  trajct  of  land  ifiiich  is  asked 
tp  be  conve^'ed'is  community  prop etty.^JIhs  prayer  is  for  specific  pevfomw 
gn.ce  Of  tl^e  contract,   aM  for  damages   in  case   tire  contract  for  any  reeson 
fiaBuot  be  enforced.     A.  deimrrer  -Tas  interposed  to  the  complaint,  v/hich 
••/as  overruled  by  tTie  court.     An  answer    vas  interi>osed,  and  upon  the  tri^l 
respondents  objected  to  the  introduction  ot  plain tiffj^  evid(^ce  vipon  the 
folloring  groundsv  ~~  ' 

"Eor  tlT©  reason  that  plaintiff*?  con^plaiut  does  not  st:  te  facts  suf- 
ficieat  to  ccinstitute  a  cause  of  action  for  specific  pei^ormance  of   a  cer- 
tain contract  therein  set  fprth^  or_to  entitle  plaintiff  to  a  decree  coro- 
pelling  defendants  to  consrey  certain  lands  therein  described  to  plaintiff.-' 

She  court  overruled  the  first  and.  souond  objections,  but  sustained 
file  thiid  objection,  and  rtiled  that  the  complaint  uid  not  state  f^cts  suf- 
ficient  to  entitle  plalntiCf  to  a  decree  of  specific  pofi'ormance  oontpell-  • 
in^  defendants   to  conv^r  the  laads  in  question,     Che  objection  ./as  sus- 
tained by  tlia  coiort  upon  the  theory  that  it  apjeared  from  the  conQplaint  

""that   Gie  plainti-if  ^s^actioa  is  based  iQ>on  a  ^Titten  contract  to  'vhich  t-ia  e-^^ 
Tii©  -vas  not  a  party,    aod  that  as  appellant  toev  at  the   time  he  entered 
into  the  contract  that  the  land  xt&s  community  property,  he  cannot  no*?' 
enforce  the  performance  ijpon  the  part  of  the  vriA'Sf  aid.  therefore  he  took 
nothing  by  such  contract,  and   that  the  "/ife.'raas  not_ ©stopped  irom  claim- 
ing or  asserting-   13iat  £h.e  had  nothing  v^iatever  to  do   .dth  the  contract 
because  she  v/as  not  a  party  to  it. 

It  seems  to  us  that  there  are  t'.u  reasons  -^y  the  •  If e  in  this  case 
should  be  estopped,   if  the  alle^ticoas  of  tlie  conflplaint  are  t.ue,  for 
•'hile  it  is   true  that  tlie  asreement  is  set  forth  in  the  complaint,   the 
other  allegations  of  the  coinplaint  plainly  sho\7  that  the  contract    ^as 
actually  made  v.ith  both  of  the  defendants.     Eie  second  alle^jation  recites 
that  lajaas  C.  Frandsen,  in  making  said  a^re^nent,  represented  the  com- 
nionity,  and  in  al.1   thiuss  vAierein  the  coranunity,  or  comrauaity  interects 
■.'ere  affected,   represented  both  his  arm.  and  the  comniunity  rights  aad  in- 
terests at   tihe  request  and  by  and  'vith  the  full  knowledge,   acquiescence, 
consent  and  ratification  of   said  vaie;   that  said  agreement  -/as  made  and 
entered  into  by  the  appellant,  and  b;''  him  f\illy  periormed,  carried  out  suA 
completed  on  his  part  by  and  at   tiae  instance,  request  and  full  consent  of 


215. 

said  doi'endaiit  Elizabeth  Froiidsei:.,  ''Ixi  asristod  plaiutii'i   in  caxryiu;,  out 
a:il  periormii-ij  said  a'^ieemeut  ^poia  liis  paxt,   and  in  all  tliiucs  done  tlier.s- 
undsr  by  plaintii  i   the  fully  concurred,  and  assented  s.jyC.  rati:.lcd  evsr/ 
act  in  pursuance  tiierooi'  until  Ion:;;  aite:  plainti:-.v  'lad  completed  his  pa-t 
Oi   Eaid  so;vea.:3nt,    £nd  cleared  all  or  saic.  la.nc..     Tlis  tliird  para^va.-h  re- 
cites that  plai;itiii ',   in  pursuance  oi    saic-  asresiTisnt,   lully  anc.  lai tlxL-illy 
psraformed  all  t?\e  -.'orlc  Cierein  rec^uired,,    aic-  tfid  ever'/  act  upon  his  pi,:.-t 
to  be  d.one  sxiC  perxoiTned,  and,,  -afc:.iin  thetima  lecuirec'.,  iully  coniplied 
•vitl:  air'.  coLXu^leted  said  a^reen-jsn t  on  his  part  to  tlie  ■a.iiII  satisiactio'?  o:. 
tie  deieixl^ntE,    aiC  thereciter,  ■'•dth  dei'end^^nts"  mil  'i,i0' ledjO,  consent 
s^z.  approval,   aiuL  ox  each  oi  thei'a,    entered  on   Sie  said  laiJcLs  co    to  be  con- 
veyed to  plaintiiT  by  deiend£;.it s ,  uirf.er  5;id  a^reev.ient,   and  tooV:  possets- 
ion  thereoi ,    aixL  slashed,   cleared  anc".  otIier"'ise  Liiproved  the  saiae   to  ?. 
^■reat   3::tent,   and  at  larG;e  and  necessary  e.-pense  c-xiH.  resultant  incre.-.. e  in 
value  thereto. 

It  is  contended  hy  the  respondents  thai  all  the  asreements  bet-reen 
the  parties  \;ere  iinally  '.jer^-ed  in  the  contrc.ct,   aad  that,  I.lrs...Frsndssn 
not  beins  a  party  to  that  contract,    she:  -./as  not  bound  by  the  terms    thereof. 
Ox  course  the  soi^eral  pioposition  that   aH  prior  a^-ee.iients  betv/een   tna 
parties  v/ere  merged  in  the  coa tract  oannot  be  dispute^"-,  but   the   allegations 
Oi   the  complaint  are  not   that  the  contract  -'as  anj.^  diiierent  iro.u  tie  con- 
tract enpressed  in  v/ritin^,  but  M.iat  iirs,  Frsjidsen  v/as  in  reality  a  party 
to    Qie  oontract,   and  tiiat  it  v/as  e::ecuted  at  her  re<iuest,   accuiescence  and 
concent,    aid,  iurt.er,    tiat  she  ratii^ied  Sbld.  contract,    ajif-  received  &e 
beneiits  ilov/in^'  iroui  the  perionnance  Oi.  the  concUtions  Ot.'   the  contr^.ct 
on  the  part  o2  tiie  appellant.     Hot  only  cad  she  asree  that    His  contrs.ct 
should  be  made,  but  she  "./ent  i'mtaer,    and   continued  to  ratiiy  ever;-  zct 
done  under  the  cont-.-.ct  until  aiter  plaintiii  had  completed  his  part  ox 
the  asi-eement. 

"!e  think  it    'ould  be   e::ceed.incly  inec;_uitable  to   ^llo'.-  this    ■..•omaii; 
aj."ter  iiavin^  encourasQd  and  consented   to  tiiis   contract,    and  alter  having- 
ratified  the  penorraance  of  it  at  every  step  luitil  the  conditions     /ei; 
complied  with,  and  ai'ter  having;;  accepted  the  benefits  ox  such  perforc-iancej 
to  deny  her  interest  in   tJie  contract.     The  plainest  principles  of  justice 
de-mand  that  she  shoxzld  uo"^-^  be   er topped  frovii  den3riiic    iiis  contract  she-  l:a£ 
in  fact  i.iade  and.  ratified. 

Hie  sec  one.  reason  is   that  the  agreement  itcelf  states  that  the  l-in:". 
in  question  is   OMied  by  James  C.  Prsndsen,    sxd.  if  the  ?J.le:jaticnE  o-.'.  ths 
co.iiplaint  are  true>   that  this   agreement  '".'as  made  at  the  rec^uest  and    ith 
the  lull  knov/led^e,  acruiescence,  consent    end  ratixication  of  the  -.Tife, 
she  should  no:/  be  estopped  i'rou:  asserting;  tl^at  the  l-nc.  is  not  c  ner"  b-y 
Frandsen,    and  ifom  denyin:j  the  tenns   of   uLie  contiact. 

It  is    also  contended  by  the  respondents   that,    under  the  rale  laid 
down  by  this  court   in  "organ  v.   Bell,    3  Tash.    554    (28  Pac  .   925),    inasmuch 
as   the  complaint  sets  forth  the  contract  upon  v.hich  their  cause  of  action 
is  based,    acd  prays   that  provided  specific  perfcimance  cannot  be  had  plain- 
tiff be  ccmpensated  in  darcages  ,   the  ccurt  has  no  jurisdiction  of  the 
case,    for  the  reason  that  the   only  basis  upon  v.hich  a  court  of  equity  can 
tal5n   jurisdiction  of  ajiaction  fcr   specific  porformsnco   is  that  there  is 
no  -GdRquate  reroedy  at  lavr.     WTiat  Y,-as  decided  by  this  court  ia  llQT^an  v. 


^,^^i:Z^^?^i^Cfe^c,,f/f    ,      ^ 


V. 


214. 

Bell,   oupra,   ^s^l,   t'js.t  iu  aa  action  lor  rpecii'ic  per-./oi'Tisnce,  v/here  c.e- 
•j. e-iidant ,   v;itliout  cny  fault  oi;  hie  o-m,   it   Iss^lly  isicapa.citatecl  froil  per- 
lormiiiG;  the  csontract,   ond  thin  lact  ic  liioo.  to  pla,i:atiii'c  vhea  thai'  com- 
mence cuit,   tlie  ooujrt  ha2  no  juric  diet  ion  Ox    Sie  ca.e:   and  having  no 
jurisdiction  to  decree  iien'ormeaace,   it  cen.  reuc-e:;-  no  £2teriiative  jud^iient 
xoi-  dsrnasfJ'--      Ii^  tla.t  cace  it  aiOpeared  th:;\t  the  plain tii"i'  loie"./  at  the 
time  0:1.'  th3   conxaeuoenont  oi   the  action  tliat   Lpecixio  periOrniance  could 
not  "be  enforced  becauce  the   titl3  nB.t  not    in   ■&iedeier!c'uaut,   and  it  vis.z 
jJlainly  an  action  broucJit  in  tl:^  et^uity  cairt   to  avoid  the  a::,ceccuent  01 
tlie  daLmoBc  by  tlia  jury,  ^'here  the  ec^ui table  action   Tact  oi  nececr. ity  lail 
and  not  tliat  the  dau'nao'ei.  vsre  incident  to  fiie  failure.     Tliic  court  in  th:.t 
c^r.e,    ai'ter  f^uotins  Sec.  47  oi'  I'omero;''  on  Sontrrctc,    cays: 

"^.  e   t:.;:o  it   th?,t   the  i-ir  corollr.::-    to   thi;.  i-rOj^ocition  ■.ould  be, 
fts-t  where  the  le^jsl  re.iedy  Oi   daaa^ec   it   ell   that  cr:n  be  decreed,    ecv.ity 
all  not  e:ei*ciLe  juriL  diet  ion,,   ^nd  the  ori^iic.  1  proposition  applis-  moi' 3 
iorciblj^  i.here  the  i?ct  ii  deterained  that  le^-cl  drj-n^^s-   -^e  all    that  ic 
sjctv.slly  j.ou:3^ts   aJid  in  this   cace  the  plaintiffs  must  have  brou^lit   their 
a,ction  on   the  theory  that  a  compensation  in  daiTia^es  •^oald  furaidi  a  coni- 
plete  and  satisfactor3^  remedyj   lor    tlie;r   loie"/  that  no  otlier  remedy  could,  be 
decreed." 

The  court  proceeds  to   cay: 

"Under  the  authorities,  ho^/ever,    .here  sonethinGT  inequitable  i^  ■"'> 
shown  in  the  tran.sactions   of  Uie  party  "'.vho  is   tii-jin;^  to  avoid  tl:e  specific 
periormance,   or  vhere   tl-sre  are  ineoui table   circUinstiLnces  surrouxxding  the 
C3se,   courts  of  equity,  notv/ithstcniiiUo;  tTnsy  cannot  decree  the  MexiOiK- 
3iLce  of   a  contract,  \7-ill  ^r.-at  relief  in  daj-nases,   3iid  whether  or  not  sac^^ 
an  eice^jtion  to   t"j3  general  rule  can  be  justified  on  ixte  ground  of  ree  son, 
the  doctrine   seems    to  be  so  ■'-'ell  established  by  the  decisions   of    -are 
courts  that  it  cannot  \"ith  sai'etjr  be  disregarded." 

Ko  such  principle  a:-   ic  discussed  in  I-ior^'an  v.  5ell  is.  involved  in 
tliis  case.      It  is  true  that  the  prayer  ooncl'.x.es  that  if  it   sliall   2i:pei.r 
that  defendants  Iia,d  no    sufficient  title,  and  therefore  cannot  convej''  said 
lands,   and  tae  ,tiole  thereof,   to  plaintiff",    and  coulc_  not  at    the  time  of 
the  coiiiraencement  of  this  action^   or,   for  ar^"  other  ccoise,   the    first  re- 
lief herein  prayed  la-    cannot  be  had,    then  tlu.t  plaintiff  have  judgment 
ajainst    said  defendants,    and  each  one  and  both  of  t;^^m,   for  sir:  hundied 
dollars  d-'jiia.jes  ind  costs.     But  that  cannou  be  construed  f  ;-.rther  than  as 
a  precautionary  application  for  relief  by  'VEy  of  darjtg'es  in  case  tie    ds- 
landents  had  wron^jfully  disposed  of   the  title  to  said  lend  sft6r  pladn- 
tiff's  ri^lit  to  the  specific  performsuce  hajd  accriied,   -./hiich  under  -21  ths 
a'JithOrities  -/.'ould  be  a  relief  to  v/hich  he  "as  entitled  in  an    -ction  foi- 
rpecific  perforaance. 

Testimony  should  be  allo-.ed  to  be  introduced  under   the  allesations 
of  the  complaint  aiid  the  denials   of  the  ansv;er  and  reply,   and  if,   in  the 
opinion  of    the  court,   the  allejationf    of  the  ccmplaint  are  sustained,   th3 
appellant  Till  be  entitled  to   a  jixl^nent  as  prayed  for.     The  judsraent  of 
tiie  coiS't  in  di anl tit;lr!^'  t;he  action  ■viHT't/iererore,  te  Teversed,  anf..  -che 
cause  reroanded  ^ritli  instructions   to  proceed  in  accordance  with  tiis  o:^r-Lio. 

Koyt,   Scott,  Mulders  and  Stiles,  JJ.,   concur.         p"  ^ -y—       \     \ 


.ia.5. 


TIKTOn  HOTEL  COMPAITr,  nesfondeiat,   v.   'JILLIAII 

HMIiHF.iLI  at  SwU,  SppellEOits. 

(?:>  ^Vash.   641,   135  P.   658) 

1913 
/.ppeal  fi-ou  a  jud^nxTiiit  of   the   superior  coxirt  fov  Yakima  county, 

Preble,   J.,   e-ite.ved  Jar.iD.rir  20,   1912,    iu  favor  o/  tlis  i^laintiff ,   ia  aii 

action  to  rfuiet    ti  tie.,   tried  to  the  court »     AfflzaedT 


Mount,   J.-- -On  ITovemTier  9,_1905,  Pri so illa^ Leo ,    tiE   ovjner  of  certajn 
lots   ill  nor  til  Yalcima,  entered  into  a  contraxii-for  fee-taie-oX-the-loi^ 
to  './illiam  Hiiilimjjt  for  07,500.     The  contract  i:rovid.ed  for  the  payment  .of 
QPOO^Tn  cash.,   and  the'remainin;;;  C'VjOOO  wxis   to  te  pai(?-  on  or  before  Ilay  9, 
_19067~'vfaen  a  ue"ed^buld  be  ^i^en.     CTie_contrrjct  is   i-i   t-.hft  »r.iiA.i_-f.cLgm_fi-f' 
Q::3cutoiy  contract  for  the  sale  crd  purcnc^e  of  laiid.     It  provided  t!:at 
tijEO'  M3L^~^^t'ne   essence,   and  that,    on  default  of  the  vendee,    the  vendor'^ 
.ni#it  declare~~a.  I'aneitureT     ghis  contract  v/a&.eiiecuted  by-PriEGilla  Lea 
aiid^V/illian  Maashein^     It  \vas  af ter-.«i,rds  duly  recorded  in  the  records  of 
Yalcima  countyT 

William  Liaahein  vas  a  married  man  at  the  time  he  entered  into  this 
contractV^d~rGmi.ned3o  up  to  the  _  1st"  day  of  February,  1906,  when  his 
\^^died,  laaviiog  four  adult  and  t^vro  minor  heirs.  On  Ilay  9,  190?^,  tlie 
time^fi:ied  in  thG_  c  ant r ac_t  far_iJic_payment,  J/illiam  2aiilieiiti"faxted-  to-pay   aa  ^i.  v> 

tlie_bal£aico  due:    and  on   the  ne;:t  day^,__Qis_vendor   served  upon  him  notice  

oi^  forfeiture,    .inch    'ac  .iccepted  bj'- Liaidieim.     Kc  aclmov;led3ed-ti!e-rrotic«— 
6i_forfeitur^  in  woi-ds  as  follo-vVE:      "."uad  I  do  hereby  acSnowlcidse  that 
said  contract  is   at  an  end,  aui  that  all  rights   thereunder  have  been  for- 
feited.''    Tl'iis  notice  of  forfeiture,  vath  the  aclaaowled^ment  of  '..alliam 
llariheim,   \vas  on  the  aaae  day  filed  for  record.     Priscilla  Lee  had  at  all 
times  been  in  the  possession  of  the  propeity.     Biereafter,   on  tlie   same_ 
dgsL.   shQ_CQnveyed  the  lots  to  J.  P.  jJedill;  ^^_'^y  suc-cossive  tiubcequaat 
CO nvqjrances,    title  passed  to^  the  plaiatif  1 .     During*  tiie_  o-.nership  pf_7Jl- 
llattlBro. titer s~I^gQ^Q?ated,  an  interveulug  ovaicr,   the  property  was   im- 
proved  by  the  erect  ion  thereon  of  a  three-s  to  ly  brick  building,    at'2rc"Ost 
of  040,000.;  iUid^  it_i£_asroedLt]a£jL.^e_prpperty_'ic"ja6vr^c^  tlie  value  <ST-~^_ 
v20,000-      ThQ  plaiiiti^"-bG:Qusht  this  action  to  fi-ee  thB  property  from  a 
Glaim_oi_inti3i:e2t_byJ;hc  dciendants  and  toqfoiet  the  title  as  asaingt 
them^.     A  decree  "ivas  ontared  in  favor  of   the  plaintiff  in  the  court  below. 
lie  defendants  Iiave  appealed. 

The  iiiain  coutcntion  of  the  appellants  is   that,    under  the    contract^;    Cwjt,^^,^_ 
the  comnunity  consiLtin:^  of  ^7illiai.i  I.Iaulieim  aai  ■.7i±'e^,^c quired  a  commuii- 
it;:^  interest   in  the  lotc,   and-±liat^   on  Ctb  death,  of  Ifcs.  Ijahheim,,  her    "~ 
coiiirnunity   intoreit  passed  imriiediately  to  her  children,    aiid   tliat  the  for- 
feiture  of   the  contract  '.vas^  not  biudins  ug>_on  the  (±.ildren  of  "I'illian _?1a^- 
TTeim  and  wife,  anfl.,  tlierefore^  tjae  cliildren  at   tiiis  date  have  the  ri^ht 
to  spec ificall3r  e2iforce  tbB  contract. 

It  is   a  settled  rule  in  this  state  that  e:cecutory  contracts  for  the  v  v -^ 
sale  and  purchase  of  land  do  noi_c.onv^i^tiDlXleither  legal   or  equitable . 
R5ddi"Eh~v.  £mrEh7Tro  Wash.   178,   56  Pac.   lOOS,   45  Am.  St.   781;  Pease  v. 
B?xter,   12  V/ash.   567,   41  Pac.   899;   Churchill, v.  Acterman,    22.  Wash.   227, 


216. 

60  Pac«  406;  Johns  Qu  v.  Eekor,  53  *",%iBh.  205,  XOl  Pao .  829;  Younkman  v. 
Ilillmaix,  53  WaGh.  661,  102  Pac.  773.  lu  Cliurchill  v.  Ackermaa,  euprs., 
at  pacje  231,   v<e  said: 

"Such  a  contract  as   tlais   is  executorj''  aiai  conveyod  no  element  of 
title,  but  could  "be  forfeited  upon  violations  of  its  caaditions." 

In  Johnson  v.  Selror,    supra,   at  pa^e  207,   in  referring'  to  a  contract 
similar  to  the  one  in  this  case,  we  said: 

"It  is  plain  uioder  these  facte,   :tiich  arc  undisputed,  that  tiie   appel- 
lant has  no  interest  in  tiiG  property.     Hie  title  novar  app  conveyed  to 
Cory.     He  did  not  Imve  possession.     Ho  had  a  contract  for  purchase  merely. 
Hois  contract  provided  that  time  \/as  of  the  essence  of  it,   an?.,   if  pay- 
laents  \vere  not  nicds  as  a^Teed,    it  mi^ht  he  forfeited  without  notice.     It 
'.75,£  forfeited  after  notice  for  failure  to  perform  by  Coi^''.     At  the   time 
of  its  forfeiture,  Cory  -jas  notified  cxf,  declined  to  finish  the  payments, 
Hie  interest  of  the  judGf^Jit  creditor  was  no  greater  tlaan  that  of  the 
judsraent  debtor.     . 

"Even  if  tZ:e  riHe  is  as  contended  fixr  by  appellant,   that  a  jud^uent 
creditor  has  a  lien  on  the  &quitab]lc  estate  of  the   juc'.^c^eat  debtor,   such 
lien  would  cease  viaen  the  equity'  ceased.     In  tliic  case  the  equitable  es- 
tate of  Cory  in  these  lots  depended  on  the  life  of  the  contract  of  pur- 
chase.    It  ^/ao  liable  to  foi-feiture  ui^on  nonperfOitnance.     l^ho  forfeiture 
as  to  him  meant   a  forfeiture  as   to  all  claiming  throu^  him.      Othonvise 
tlie  contract  -.vould  be  of  no  avail  to  the  seller,  for  whose  benefit  this 
clause  -.vas   inserted.  ' 

And  in  Younkman  v.  Hillman,    supra,   at  page  663,   ■.,•©  said: 

■'The  whole   tenor  and  effect   of  the   contract  is  clearly  in  contempla- 
tion of  a  future  aui  not  a  present  sale.     Such  contracts  have   irwariably 
bsea  held  to  bo  coutracts  for  title  oi   .i^-eemcnts  to  convey,  not  ripening 
into  even  an  equitable   title  until  the  vendee  lias  placed  himself  in  such 
a  position  by  perfojraance  that  he  can  coinpel  a  conveyance.     Chappell  v. 
lIcIQiiSht,   108   111.  570;   Hunnsesser  v.  Hai-t     122   Iowa  647,    98  U.  W.   505; 
Stevraxt  V,  Powler,   57  liua.   677,   15  Pac.  918. 

"IhD  oblij:ation  of  the  vendor  ih  these  contracts   is  similar   to  that 
of  the  obligor  in  a  bond  for  a  deed,  and  it  is  held  that   'a  bond  to  convey 
land  is  not  a  title,  but  t  imply  a  contract  to  convey  title.'     llartin  v. 
V/right,  21  da.  504;  Dahl  v.  Press,   6  I.Iinn.   89.     V/e  cannot  regard  respond- 
ents as  purchasers,   there  bein^  no  investiuun.1  of  anj'  tit3e  In  them;   nor, 
under   Gie  contract,   any  passing  of  title  until  s  c-oiri>liance  v/ith  its  terms. 
A  purchaser  means  one  vho  has  acquired  the  title,   not  one  v/ho  holds  under 
a  bond  for  a  conveyance.     Gilpin  v.  Davis,   2  Bibb   (I^'J  416. 

"In  Reddish  v.  Smith,   10  V/ash.   178,   56  ?ac.   1003,   45  Jja.  St.   761,   -.B 
held  that  contracts  providii^  for  forfeiture  of  installir^ents  paid  at  op- 
tion of  vendor,  as  does  this  contract,  v/ere  conditional  sales;  and  in 
lease  v.  Ba;:ter,   12  './ash.   567,  41  Pac.  899,  and  Ch-urchill  v.  Acterman,   22 
Wash.  227,    60  Pac.  406,    the  holding  was   Uiat  saCui  contracts  convey  no  ti- 
tle.    \7q  are  inclined  to  regard  these  authoritiss  as  decisive." 


217. 

It   is  ,  thorefore,  iJlain  from  our  previouG  boldliigs  upon  contracts 
of  fhio  chai^acter  tliat,   until   the  ccntract  was  perf'omied,   no  title, 
eitlier  legal  or  ecoaitable,  pacsed  from   fiie  vendor   to   Ihc  community;   and 
that,   upon  the  failuro  of  tlE  Ilaaheims  to  comply  vdth  the  terms    of  the 
contract,   no  intai-Bst  \^iatcver  in  tiie  property  xjaz  vested  in  the  Llau- 
heims,    or   in  any  one  claiming  throuji  them. 

Concediaj  tliat  -vhatever  interest  "Tilliaai  ijiaiihetm  acquired  in  the 
contract,    or  tlie  sale  to  which  it  referred,  -.Tas  a  '5 oiia.nu li tj,"  interest; 
t:Tat  interest  uscessarily  dopsadec.  upon  the  fulfillment   of  the  contract, 
■./illiam  Manheim  Vvas   the  agent  (£   tlie  coivimuni ty ,   and  \vac  authorized  under 
the  statute   to  have   the  managomeiit   .and  control  of  tlie  community  property. 
Rem.  &  Bal.   Code,  Sec.   5S17,   5918    (P.   C.   95  Sec.   27,   29).     ;uid  until   tlie 
iaterest  -.vhich  la  acquired  at  that  time  'oecame  an  absolute  interest,   and 
vested  some  soit  of  title  in  the  corjraunity;    tha  cornmunity  had  no    gre^.tjr 
interGst    tlian  "/illiam  Manheim  himself .      It  is  jl<;in,   -./j  tla ink;  that  '/il- 
liam IJanhcim,  liaving  sclaiowlodgod  that   Jho  coiitract  v/as  at  an  cud,    and 
fiiat  all  rights  tlx;raundcr  had  been  forfeited,    is   in  no  position  to  claim 
any  iutoroct   in  the  contract,    or  in  the  real  estate   to  T/hich  it  rafeired. 
.Uid  thercforo  it  seems  plain  that  this  claim  boin^i'  made  through  him,    tlie 
coiniHmitjr  has  no  interest.     For  ^7hatover   interest  the  community  acquired, 
it  acquired  throi^h  the  act  of  'Villiam  Manhoim.      2hc   interest   of  the  com- 
munity ivas   incipient,   and  until  it  ripened  into  a  completed  interest,    the 
community  acquired  noCiing.      It  seems   too  plain  for  argument   that,    if 
Jlrs.   Ilanhcira  liad  survived  the  period  of  the   contract,   and  V/illiam  Hanlieira, 
during  her  lifetime,  had  made  the  acknovdedgment  v/ldch  he  d  id  make,    she 
\\ould  liavo  been  bound  thereby.;    aM   tliat  the  contract  as  to  both  Y/illiam 
Manheim  ahd  his  wife  \70uld  have  been  entirely  avoided.      Ihe   same  rule 
must  folio  was  to   610  se  claiming  through  I  Irs,  Ilanhcim.     'Ve  think  it_is 
plain,  both  upon  teason  and  thj  rule  of  this  court,   that  "the  heirs   of 
lE^.'iranheim  have  no  ri  ghts  midar  tne   contract..    It  is,    therefore,  Im- 
necossary   to  consider  other  questions  T^hich  are  presented  upon  this  ap- 
peal;  excei)t  possibly  a  question  \3iich  is   claimed  by  tie  appellants  to 
be  a  federal  question. 

Appellants  state   in  tiieir  brief,    in  SLibstance,   that  thej''  have  been 
deprived  of  tieir  property  vathout  due  process  of   law  in  contravention 
of   the  14th  amcndmont   of    Sie  constitution  of  the  United  States.      There 
is  no  merit  in  this  contention;    for  v/ljat  -.ts.  l^.ve  heretofore  said  upon 
the  case   indicates  quite  clearly  that    Iho  appellants  vv-ere  brought  into 
court  by  regular  process;    they  appealed  in  liio  action  and  submitted  tlieir 
claim  to  a  court   of  competent  jurisdiction;   thty  iuive  prosocu test*,  an  ap- 
peal to   thicr  coiirt;    they  liave  assorted  their   claim  of  ripht,  and  it  h^.s 
been  found  that   they  liave  no  claim  of  ri^t.      It  has  been  said  by  the 
siipreme  court  of  the  United  States: 

"A  trial  in  a  court  of  justice  according   to  the  modes   of  proceeding 
applicable   to  such  e  case,,  secured  by  la  s  operating  on  all  aliice,   ^ht. 
not  subjecting  tiTe   individual  to  the  arbitrary  e;:ercise   of  the  po'iveis  of 
govornment  unrestrained  by  the  astablisbed  principles  of  private  right 
and  distributive  justice — the  court  having  jnrisdictioa  of  the   subject- 
matter  and   of    the  parties,  and  the  defendant  having  full  opportunity  to 
be  hoard — mot   the  requirements  of  duo  process  of  lav/."     Cliicago,   B.  i  C- 
I?.   Co.   V.   Chicago,    166  U.  S.   226,    234. 


2ie. 


See,  also.   Unit od  States  v»   Cruikshanl?:,    9;i  U.  S.   542-    Lcopcr  v.   Te::as, 
139  Uo   S.  462. 

No  Federal  question  is   involved  in  the  case. 

The  judameat   of  tiie   lower  court  is  tlierefore  affirmed. 

Crovt,  C.   J.,   Chad^clc,  and  Parlasr,   JJ.,   concur.         FT-©  ^^    ^^^. 

Goso,   Fullerton,  Ellis,  Ifein,  and  ICoi-ris,    JJ. ,   concur  in  the  result. 


~7    ^  ~  ' 


,    >r>'t--^c?  a^^.^^ <^^,. 


Ou.a^/i^^j0--,,^,^<.-'lju.,U^  ^-^      /i^'lj^^^-^-'^^^^-^^ 


-^' 


c^ 


-    f 


6 


i,    -^..*-«.-»,_...-i— ^^-i_ 


/■-^^ 


_,^    J    .^oixi-^2^^^^:^ 


d 


^      ^^-7,   4 


V 


-6^   .1^ 


219. 


(HRILTLin  2HYiIEEJiir  et  ire,  Rcspondoats, 
V.  E.   C.  rEUTELDER,  Appellant. 

(9  Wash.  455.) 1894. 

Appeal  xrom  Superior  Court,  "thatcom  Couuty. 

The  opinion  of  the  court  \Tas  delivered  by 

Hoyt,   J. — Chiistian  Thj'-^-oEGii  made  a^eed  of  assignment  imdor  the 
proviaiou£i  of  tho    insolvency  act  of  Ilarch  6,    1890    (Laws,  p.  83).      Ihe 
assijnoj  named   tleioin  liaviuj  failed  to  qualify,   the   appellant  v/as,    in 
ITuicuanco   or  f;o"ji-ovisioh's  of  the  statute^,  appointed  assijnee  and  qual- 
ified and  entorod  upon  liiG  dicchaxje  of  his  duties  as   cixh.     Lz  a  part 
of  the  assets   ol    tho  estate  h^  collected  certain  jrioncys  due  upon  a  lease, 
v4iich  hofore  tLe  e::ocution  of  th9..do-ed-Q£-assl,;-;nHic,nt.hajdJbeen  iTiade  by 
said  Cln-istian  Chyjoscn  to  one  Br  am  and  one  Carter.     Thereafter  said 
Chri^Tiaiil  TbiyjeEen^"aiiL.IiJon JI.    Ttiyjcsen,  his  wife," filed  their  petition 
in  tiiG  superior  court   in  tho  assi^nroint  proceeding-,   and  prayed  that  the 
a£Eijnoe  should  be  required  to  account  for  and  pay  over  to  them  the  money 
sa_collQCuted^  _  Tho   superior  court  imdc  an  order  :jrantia^   tho  pra^^cr  of 
tlio  petition,  from  v/Mch  this  appeal  has  been  prosecuted. 

Appellant  relies  upon  several  propositions  ^s  furnishing  reasons  for 
the  reversal   of  GitTorder,   the  fii-ct  and  most  important  one  beiiaj  tiaat  the 
deed  of  the  insolvent  debtor,  althouji  his  -./ife  did  not   ,70 in  in  tl^e  o::e-~ 
cutlon  thereof ,'~v.s:s  "effectual"  to  convey   to  Ms  assignee   in  trust,  purs-a- 
ant  to  the  act'^bve  cited,  tho   GommunitY_r^eaI_es tate  Tor  -Ehe  p%menJ;,.of 
th^  co;miunit3'  debts.      If  this  contentiou~of   the  ~appell3nt  is   sustained 
the  result  will  be  a  reversal  of    the   Oi-der;    for  it    is  conceded  tli£.t  the 
real  estate,   for   the  use  of  aiich  tlie  rent  was  paid,  v/as  coraaunitj^  prop- 
erty;  and  it   is  also  conceded   that    1h.e  debts  v;]iich  l:2,ve  been  proved  in 
the   iusolvenc3'  proceeding-   ijere    tliose  of  the  cormunity.      If  the  deed  of 
assijament  e;cecuted  by  the  husband  alone    is    to  be  cousti-uod  as   a  convey- 
ance of  the  proiB  rty  therein  described  to   tlie  assignee  uamed  tliercin,    for 
the  purpose   oi  l.iavii\;  it  applied  to  the  pa;7me-nt  of  his   debts,    it  is   clear 
that  it  cannot  liave  force  so  fax  a£   the  coi^raunity  property   is  concerned. 
In  otliir  words,    if  tlie   assijnraent  thcrci-n  rnade  is  to  be  treated  simply'  as 
a  conveyance  £t  common  la\.',   end  the  provisions   of   oUl-  statute  applied 
thareto  in  aid  oi  the  common  la/-7  assi  janent  thereby  created,  the  property 
of  tho   corrmunity  could  not  be  conveyed  Ciereby.      Hie  effect  of  deeds  of 
assijnment   under   wiic  statute  Ims  been  already  detormiaed  by  this  court. 

Iii  Traders  Banl:  v.   Van  "./ajenen,   2  V/ash.   172   (26  iac.   253),  vre  held 
tliat  the  lormei-  lav;  upon  the  subject  v;as  one  previa in^  for  the  applica- 
tion of  all  the  insolvent's  estate  to   the  payment   of  his  debts,   and    that 
vJien  once  set  in  motion  by  tlie  action  of    tlie  debtor,    it  passed  to  tZ:fi  as- 
sijnee  all  of  his  property,   ^hEther  set   out   in  the    schedules  or  not.     And 
in  Mansfield  v.   First  national  DanH,   5  V/ash.  665    (32  Pac.   789),  \^  l:ield 
tliat  the  la\/  under  consideration  Iiad  tal^en  the  place  of  the  foiToer  one, 
and  that  proceedings  thei-eundei'  \vGre  for  a  li'.ae  purpose,   and  tliat  the 
i-ljlit  to  all  of  the  property   of  the  debtor  passed  to  the  assijnee  or   to 


2ao, 

the  court  iu  stitch  tlic  proceec1in:;;E  v/cro  inst5.tuted,  far   the  bone-fit  of 
thG  creditors,  rec;ardlGcs  of  the  qiDstion  as  to\*.othcr  or  not   all  of 
such  property  \v2.s  not  out  in  the  doed. 

It   is,   therefore,   umeconsary  for  us   to  further  consider  tho  quoctic; 
as  to  tho  nature  of  the  proceeding  under  the  insolvency  act  in  question. 
It   is  now  the  settled  law  of  the  state  that   it   is  but  one  of   tho  means  b:' 
\ihich  au  incolTont  de^ji-.or  may  jsurrondor  to    the  court  all   of  his  proix;rty 
lor  tho  purpor>G   cf  haviu;;;  it  a'pplicd  to  the  pa^.taent    ol  his  debts.     Tliis 
beinj  so,  tho   important  question  is  presented  for  our   decision  as   to 
\licther  or  not_jtho  hu';band  can  alone  put   in  motion  the  irachincry  of  tho  ^ 
act_Tor_tIie~ benefit   of   the   comrjunity .  and  for  the  purpose  of  payinj^its 
febts. 

In  the  care  of  the  Ore;jon  Iar-?rovcnont  Compcny  v.  SaoTncister,  4  './ash. 
710   (30  Pac.    105R1,   v/e  held  that  a  judjmont  against  the  husbaiid  for   a 
liabilitj-   incUi.-rod  in  the  prosecution  of  his    ordinai-jr  buEiucss  '.vas  priiaa 
facio   one  wile h  \/ov'ld  bind  the  coKraunity,   and   that  coramunity  property,' 
mi£$it  be  sold  in  satiffaction  thereof.     Sec,  also,   Calhoun  v.  Leary,   5 
V7ash.  17   (52  Pac.    1070);  Abbott  v.  Y/otherby,   6  V/ash.   307    (35  Pac.  1070). 

From  v^iat  was  said  in  these   cases   it  appears  that   Uie   only  question 
which  was  oioen  for   irwestijat ion  by  tlae  wife  was  as   to  the  character  of 
the   indebtedness.     Thoujh  it  \i^.s  prima  facie  that  of  the  corrmunity,    she 
could.,  before  or  after  judjraent   overcaao  the  presumption  bjr  shovdnj  af- 
firmatively that  it  v/as  not  the  debt  of  the  community;   and  this  v;as  all 
sho  could  do  to  protect  tlie  community  propertjr.     if  shi   could  not  shov; 
that  the  dobt  was  not  a  community  one,  she  could  in  no  manner  recii-t  tho 
enf  crcoment  of  the  process  of  the  court  ajainst  tho   community  property  in 
satisfaction  of   Gic  jucl^raent  rendered  thereon. 

From  -.hich  it    all  follow  tiiat  in  a  case  lilK   the  one  at  bar  each 
of  tho  several  creditors  could  have  procecu^ted  his  claim  to   jud^.ent 
a^'ai ngt~th5— htisbaid~ aloneV  and  had  satisfaction  thereof  by  levy  ahSr  sale 
of'tlae'^cbiTfflunity^pr^er^^il     Hot  only  would  the  creditors  have  had  this 
ri^it ,  but   th e  husband ,   f  car  the  purpose  of  savinj  e:rpense,  could  have 
gone  into  court  and  confessed  judgment  upon  each  of  the  claims,  v.i  th  tho 
saue  effect.     'Die   only  difference  between  a    judgment  by  confession  and 
one  in  a  rejularly  prosecuted  action  would  liave  been  as  t  o  the  raestion 
of  jood  faith  on  the  part  of  the  husband  &x£.   the  creditor;   and,    it  hav- 
ing been  established,   such  judjnent  could  be  enforced  ajainst  the  com- 
munity property  the   same  as  any   other. 

It  follov/s  that    the    interest  of  the  \,-'ifo  in  tho  community  property 
is  coutin:;ent  upon  thce"^ fat e^  of   the   affairs  of  the  coraiwinity  as  conducted 
■by~the  Iiusband..     lQiis~bein^  so,   and  i€  beinj  T/ithiu  the  power  of  the 
creditors,  v/itlxtut  any  act  on  the  part  of  the  rrifo  ei.thcr  negative  or  af- 
fiiToative,    to  subject    Qie  propertj?-  of  tlie  community  to  the  debts   incurred 
by  the  husbard   in  tho  prosecution  of  its  btsiness,  we  see  no  reason  why 
he  should  not  be  allowed  to  save  the  eiicpense  incident  to  the  prosecution 
of  the  several  claims  of  the  creditors,  and  at  the   same    time  do  justico 
bet'u-een  them,   by  voluntarily  placinj  all  tho  property  of  the  coranunity 
in  the  custody  of  the   court  for  the  benefit  of  sich  creditors.      Of  course 
his  action  in  tliis  behalf  would  be  open  to   attaclr  bj'  tho  wifo,    if  not  in 


«->■«■  "3. 


yt^\.^ 


.xt^»--ir 


221. 


^od  faitli,    and    it  -.yould  also  al^vays  "bo  open  to  lior  to  scie  that  the  com- 
muuity  property  v.c.c  not  applied  to   tho  paynout   of  other  tlian  community 
de"bts.     And  -..Ith  theto  r i  Jats  rGserved  to  hor,    it  v/ouli  ccem  that  her  in- 
terests a2x"'.    those  of  the   community  and  of  the  public  '.-oulcl  bo  best  sub- 
served 'b-j  the  ri^ht   to    tiuc   apply  the  c  ommunity  property   tO'- the  payment 
of  these  debts  beinj  rcjco^niiied  in  the  husband. 

But    it  is  cort^fded  on  the  part  of  the  respondent,   that  to  i;ivc   to 
the  deed  of    the  hu£.bancl  a.lonG  any  force  -.hatover,    is    in  violation  of  our 
statute    {'3en.  Stat.,  £)ec.   1400),  \vhic2i  provides  that  no  conveyance  oi-  in- 
curabranco  of  the   coinmunity  real  estate  shaU  be  valid  unless   the  husband 
and  v/ife  join  in  tlia  mairinj  thereof.      K   this   deed  coces  \dthin  the   in- 
hibitions  oi   this  ttatute,    it   is    undoubtedljr  void.     Bat    in  our  opinion 
it  does  not.     .Is  above  sujjested,  wo  thinlc  that  it   is   not  a  deed  or  an 
incumbrance   of    the  property  in  the   ordinaiy   sense.     On  tlie  contrar;,',    it 
is  but  a  surrender/Of  the   same  into  the  custod;'-  of  tie  court  for  the  pur- 
pose  of  havinj  iV applied  as  the   laM  requires   it   to  be;  and   if  there   is 
an3r  sxzrplus  romai'.ninj,    it  v/ould  be   returned  to  the  cooraunity.      Ihe  pg?or 
executed  by  t  Je  husband  should  therefore  bo  considered  not  as  a  conveyance 
but  as  one   of   the  methods  hj  i.-liich  the  proper tj^  may  be  subjected  to  the 
comnunity  debts,  and  th^t   it   beiaj  in  the  po\/er  of  the  husband  to  contract 
such  debts  in  the  prosecution  of  tlie  business  of  the  community,    it   is 
vdthin  his  power'  to  set  on  foot  tie  machinei^r  of  the  law  by  vtiich   its 
property  jnay  be  applied  to  t-cir  pa3m)ent. 

The  title  to  the  corxiunity  real  estate  passed  to  the  appellant  as 
assijuoe  in  tlie  insolv^nc^'  proccedinj,  antl  he  i-ijhtfully  collected  the 
rent  as  a  part  of   the  assets  of  the  estate. 

Tlia   orders  v/ill  be  reversed,  and  the  cause  remanded  \n.th  instructions 
to  dismiss  the  petition  of  the  respondents. 

Dunbar,    C.   J.,   and  Stiles  CusL  Asaderc^,   JJ.,   concur.  — ^  ' 

Scott,   J.,  dissents - 


222. 


WILLIAII  H.  CAIHOUN,  Respondent,  v.   JQHH  LE/JT^, 
JACOB  PURTH  and  LEMIY-COLLIFS  LIM)  C0r5-;J]YJ 
Appellants,   andll,!.  V.  3.  Sll.GY  et  al..  Respondents . 

(6  .Vasli  17,   leSbJ 

Appeal  fro;n  Superior  Oourfc,   Kin,;  Comity. 

Et©  opinion  of  tlxe  court  "'/ae  delivered  by 

Hoyt,  J. — In  J.^iuorjr^  18G4,  M.  V.  S.  Sti.cy,   Jo>ja  Leaiy  and  A.  Mackin- 
tOsli  desired  to   joiutly  purchase  "ttie  lancTlhe'" title  to  wliich  is  in  contro-^ 

'ygr^sy~in~tiiics  actXon.     The  first  named  had  the  money  'ith  'Viiich   to  malce  "She 
purchase,  and  was  willing;  to  raa'ce  it  cai  tlie  joint  account  of   the  three. 
It  v;as  therefore  agreed  "between  them  Giat  the  purcloaso   should  be  rasdo,  and 
the^ntire  conrideration  paid  by  said  Stacy.     Under  tlais  arranjomaat    th_3 
property  was  purchased  by  said  Stacy,   and  Islie  lG:;al   title  thereto  placed 
in's^»idHaclcintOElifc'and  a  memoraudian  mct-e  betvTeen  thoa  by  vr.ich  it"'''3S- 
a^-reed  thrtaach  of  said  pai'ties  should  have  a  one-t]iird  interpst  in  the 
sarae,   the  said  Leary  and  liackintOEh,eacIi_t_o  pay.  said  Stacy  the  sum  of 
$^2,666.67  wi&in  si::  .'ion ths,_ with  interest  thereon  from  the  date  of  the 
aGreemont  at  one  per  cent,  per  .nonth.     Lfpoa  sudi  payment  by  said  Leazy 
and  Mackintosh,   each  of  the  parties  \va^   to  be  entitled  to  a  deed  of  an  un- 
divided one-third  interest  in  the  property.     V.hile  the  le~al  title  j'-et  re- 
mainted  in  said  Macuiutosh,  the  tdlC  Leary  paid  his  share  of  the  purchase 
price.     Tlie  said  Iteckintosh  never  paid  f o r  his   sl2£.rej_and  at  this  tirae_dis- 
claims  all  interest    j-ro.an^'  out  of   said  ajreelient;  and,    so  far  ac  his 

^equitable  interest   is  coacorned,   it  can  cut  no  fi::^ure   in  the  case,  as  upon 
such  disclaimer  bjr  him  interest  tlerein,   if  he  ever  had  any,   ■./as  in  ecuity 
vested  in  said  Stacy.     ISie  said  MaclciutOLh,  at-the  holder  of  the  lejal 
title,   issued  to  said  Stacy  a  certificcte  t^io'i'cc:   thc.t  he  ■•'cc    the  o-rner  of 
ai^  undivided  one-t.ird  into:,  est  in  tSie  l£.nd.     Soon  aftei'    such  certificate" 
was  issued,  Sticy,    for  a  valuable  consideration,   assigned  and  transferred 
it  an<i  his  interc:;>t  thereunder  to  one  Matliiis,   •ho,  by  like  ascijiinentj 
^Od' als  0  by  quit-cI:  in  c.e.K-,    conveyed  said  intereclfto'Pi-eS^  E.  Scaler,  '_Ano 
thereafte:  received  a  deed  fron~lfecV:iiit05h,    the  holder  of  the  lej ;  1  title, 
conveyixi^    to  hiiii  Uic  tauie  iatrfi;ytt^    Sin6.er  ana  '^'ire   then  conveyed  to        SvesVs 

ITiniiu.i  Iir"^Cai:iDTraV"f-'^'^lI-iutif±^  in  tliis  :ction.     ...ftor  the  payaent  of     

"Sis  Koare  of  ^tlie"^purcha&c  price  by  Teexy,  end  lon^  after  the  tiirB  v/hen  the 
interest  of  said  liiChir.tosh  sl'^ould  have  beer  psid  for  unc.er  the  tercic  oi 
said  ajreeroent,    the  property  was  levied  ugon  and  sold  und-sr  an  o.:ecution 
issued  upon  a  juc-^ment  in  favor  of  nne  Georje  D.  Kill^  SJtid  a^^-ainct  saTC 
£tacy  -ixL  Lear-v',    at    hich   sale-  the  prop&ity  .-es  bid  in  by  s^id  Georje  I>. 
Kill,  v;no~th.ereafter  reccived'a   slieriff's  deed  tl^erefor.     The  title,   iT  aJiy. 
thus  acquired  by  scid  Hill  was  after.-ai-ds  conveyed  to    :nd  vetted  in  tlie  re- 
spondent Jolm  H.  IIcGra;.     Such  title  was,  questioned  by  cert,:.!:^  parties, 
v*io  instituted  a  suit   in  equity  lelatiu^-  tliereto,   and  such  procee'in^  were 
had  tliat  the  matter  v/as  •iin^-.lly  compro.-.iis ed  "by  the  payment  of   the   claim  ot 
those  attc.iptin-  to  accort  ecuitie3  as  ■a:;c;i.i£t   cilC.  title  by  saidlicGra-  i- 
the  interest  of  the  title  derived  frOin  said  Killl     Before  the  interest  of 
said  Hill  'Vas  purcJiased  by  saidllcGrsw,  he  h;d,   in  theinteie&t  of  the 
several  claimants,  been  vc5te<§!  with  the  lOo^l  titla   to    ax  undivided  tv/o- 


223. 

thirds  interest  iu  said  1:  ud  as   the  trustee  for  said  claimants.     At  this 
time,   ard  before  saic.  i^urchase  by  said  McGraw,  nesotii'.tions  were  hcd  be- 
tween him  and  s-id  Learj-,  by  which   it  v/as  arrsn^ed  betv/eeu  then  that  the 
title  derived  by  said  Hill  under  said  e:cecution  sale  should   be  purclicsed,  b 
by  said  HQGraw  iix  the  interest  of  himself  a:af.  tha  saic.  Leery.     2iiE  ax- 
ran^-emoit  was  carried  out,   an-'   the  title  of  said  Kill  purchased  by  said 
McGrav/,   anil  tha  turn  of  08,000.  piid  therefor.      In   lurtlier  pursuance  of  the 
arrauje.v.ent  between  said  Les.xY  aid  LIcGraw,   the  interest  of  those  atte^iptin;;, 
to  assert  equities   as  against  the  Hill   title  ".'as  purchased  in   tlieir  in-     . 
teres t  b^-  said  iicGra'v,   a:a.l  tha  sira  of  04r,000  paid  .it!:«3Efor.     It  '.^as  under- 
stood between  said  I.IcGrav  atf.   Lecxy  th,.t    tiaey  each  had  aa  ec^ual  intei^est  in 
tliDce  trails  act  ions.     It  was  urdei  stood  bet  /ee.^  tlien  that  the  entire  in- 
terest held  by  both  of  thea  xio.t  a  two-tlnrds  interest  iu  the  property  in 
question.     At  tl-e  request  oi"  said  Leary,   and  in  pursuance  of  this  unc'.er- 
ctaiidinG',    tlis  said  McGra     couvo3'-3d  to  one  J^-cob  Fui'th,  as  trustee  for  said 
Leary,   eoi  andjvj.ded  one-third  interest   iu  said  property.    .Durin;;  all  this   . 
time  the  said  II.  V.  B.  Lt.;cy  and  t:,id  Jolm  Leizry  were  marrisd  men,   living 
witli  their  -/ives  in  the  city  or  Seattle,  '  liere  the  property  v;aE  situated. 
Some  time  after  the  transactions  hereinbefore  set  oat,   t>e   Ssid  Stacy  anc- 
his  \afe  convsyed  theri  interest  in  the  entire  property  to  John  Collins,^ 
and  he,  his  vafe  joiniu^-  him,  conveyed  fde  saxae  to    the  Lea: y-Collins  Land 
Company,   one  of  the  appell:nt£  here.     At  the  ti;r£  these  last  conveyances 
WBBB  made   it   is   clear  that   the  :;;rantee£   in  such  convex/ ?nces  h?d  ffll  "oio^''- 
lec-e  of  all   the  facts  above  set  forth.     Thsj  also  had  full  lmov;l3d-e  of ^th 
fact   that  tl:are  v;as   3n  oral   a:,-reeaent  e::;istin:v  bet'/een  the  said  Stscy  ard 
his  wife  tha.  t  each  of  thorn  diould  luve   tlie  sole  maxia^^snext  of  tiieir  ov;u 
property,  and  that  ell  property  acquired  "-by  either  of  the  spouses  before 
or  during  mar-.ia^'e  should,    as  bet^'een  them,  be  tlie  property  of  the  spouse 
thus  acquirin;;;. 

Under  th-is   state  of  facts   the  question  preeantod  is    as  to  tlio  re- 
spective interests   in  said  praparty  of  the  paxties  to    the  action.     The 
appellsQt  tlx-  Lo3XY-0olli-as  Land  Company  clsims  th=t  it  is   tha  o-'ner  of 
the  entire  title,  for  the  reason  that    Cie  laril,  -.iien  acquired  by  said  Stacy 
becaane  at  ones  co;.Munity  property  and  could  only  bo  conveyed  by  the  joint 
action  of  the   two  Ej.-ouse&.     V/e  are  uiDabl  e  to  ajree  v/ith  this  contention 
for  the   reason  that  the  le:;al  title    .^s  never  vested  in  said  Stacy,   either 
as  separate  or  comjiunitjr  propertyi     .Ul  th-at  he  had  ^.^ss  an  interest,  the 
rijht   to  which  he  could  assort   in  a    court  of  equity.     If  tlx.t  ^;aE   all  the 
title   that  he  had,   it    •as  all  that  tho  conaunity  could  have.      It  vv-ould 
follo-w  th^t  neither  the  corainunity  as  a  vhole  nor   the  spouse  \b.o  had  taken 
no  part  in  the  transactions  could,  assert  any  rijit    to  the  lard    vhich  it 
would  not  be  equitable-  thus   to  assert.     How,     hateverthe  effect  of  this 
Orel  asreeaont  bet  .een  said  Stacy  gjid  liis  wife  ciioht  have  had  upon  sascparty 
acquired  after  marriaoS,  where  fire  leG'5.1  title  had  been  conveyed,  it  is 
clear  t::at  in  a  court  of  equity  neither  of   the   spouses  could  assert  any 
rijht   to  property  thus    acquired  in  t  ha  h;jads  of  a  purchaser  foi-  veins,  v/ho 
liad  obtained  it  solely  fro^i  the  otlier  spouse.     V'e  laioiv  of  no  reason  \hy  the 
members  of  a  comniuni  tj--  as  a  whole  or    separately  slxuld  not  be  bound  "'^'  the 
same  rules  of  ^-.ood  conscience  as    those  ?LOt  occui^-'yin^  sucl'.  a   relation;   and, 
as  an   individual  ^vho  held  another  out  to  the  world  as  hr.vin:;^  full  aut-.ority 
to  deal  -vith  and  malre   title  to  any  property,   real  or  personal,  \.-ould  be 
estopped  from  attachin;;  the  title  thus  conveyed  in  liie  hands  of  a  purcliaser 
for  value,  we  see  no  reat-on  v/hjr  a  manber  of   the:  community  siX)uld  not  u^on 


the  Sane  :^Ji-inci_.lG  "b-e  estpi^jed  fran  assertinc  ri;,iitE  to  a  title  conveyec. 
by  the  otlier  v/ho.~i  olie  had,   not  only  at   the  time  of   the  convoycoice,   iDUt  for 
a  lon^j   time  liotl-i  "b afore  and  aftei-  it,  held  out    to  the  -/orld  as  beiai:;  en- 
titled to   thus  deal  v/ith  tlis  property.     Besides,   even  if  the   interest  v/hic" 
said  Stacjr  acquired  in  the  i^roperty  sliouM  be  held  to  have  been  a  corrmunit; 
interest,  mc  thinl:  that  such  interest  wDuld  have  been  cJLvested  by  the  sale 
on  eicecution.      St  is  clear  that   swch  v;ould  liavo  been  tlie  effact  of    tha 
sale  had  it  appeared   tlxt   ihe  debt  for  viiich  the  jtidGpaat  was  rendered  v.'as 
a  conmunity  debt.     But  it   is  claimed  tSaat  in  the  absence  of   cny. shoving  of 
this  kind  it  will  be  presumed  that  it  was    the  sepai'ate  debt  of    tihe  spouse 
against  viion  the  jud:^'mGnt  v/as  renclered.     In  our  opinion,   everj'  debt  createc 
by  the  husb  ud.  during  the  e.-'.istence  of  the  rjarri e^'e  is  priina  fact   a  ccn- 
munijiy  debt.     All  the  property  acquired  by  him  is  prii-.ia  facie  connunitj'' 
property,   aixi  \jq  thinic  that  justice  aixL  jood  conscience  demaisi   that  tlis 
oth3r  presumption  slxuld  also  prevail.     In  the  absence  of  any  proof  as  to 
Gae  nature  of  the  debt  this  presUiiiption  obtained,  and.,  for    the  pur:^.os3t  of 
tills  case,   the  debt  upon  v/hich  this  judgraeat  v/as  rend.ered  must  be  held  to 
have  been  a  cor.iTuni  ty  cebt,    aid  for  that  reason  the  entire  property  of  the 
co;.Tnunity  divested  by  the  sale  made  therei-ndei;   aai,   as  this  appellant  is 
charged  •Mth  full  notice,   it  can  assert  no  ri:J^t  v/hich  the  coraiMunitj^  oiuld 
not  h£V0  asserted  if  it  had  not  conveyed.      It  follov/s   that  it  has  no  in- 
terest whatever   in  the  property. 

Tlie  appellants  Leary  and  Furth -gfoo,    for  all  practical  purposes,  may 
be  considered  as  Leary  clone,  as  Furth  has  onlj/  been  made  a  party  by 
reason  of  the  fact  that  Leary^s  title  it  held  by  him  as  trustee,  do  not 
assert  aiythin:;  as  against  the   title  of  the  respondent  Y/illiam  LI.  Calhoun. 
Their  contention  is    that  they  are  entitled  to  the  re.:iainirig  tv/o-thirds  in- 
terest   in    the  property,   and   that   tlie   respondent  John  H.  Hc'G-Eav/  is   entitled 
to  no  intei-est  v-hatever.     It  is   claimed  by  them  tliat  the  one-third  inteiest 
which  Leary  obtained  by  reason  of  the  original  arraii,:.ement  at   the  time  or 
the  purchase  of  tlx?  property  has  never  been  divested,  and  that  by  reason  of 
til©  conveyance  form  McG-raw  they  obtained  another  one-third  interest.     In 
our  opinion,    tliis  contention  cannot  be  sustained,   for  tv«  reasons:   First, 
Because   the  original  interest   of  Leaiy    in  the  property  was  divested  by  the 
sale  on  e:cecution;   second,  'hether  or  not  his  interest  vvas  in  fact  conveyed 
by  the  e::ecution  sale,   it  clearly  appears  from   Hie  proofs  tliat    this  --as  a 
question    taken  into  consideration  at   Sie  time  of   t!ie  arrange;r.ent  for  the 
purchase  of  the  Kill  interest  by  said  licGra-'v  in  the   interest   of  himself 
and  said  Leary,  and   it  was  at    tliat  tiae  understood  bet'-een  tlien  tl-at  upon 
such  purcliase  said  Leaiy's  original  one-third   interest,   together  \lth  the 
other  one-third  which  it  was  supposed  Kill  hcd  title  to,  would  pass  to 
said  ilcGrav;  for  tlieir  joint  benefit.     Under  this  state  of  facts  equity 
and  good  conscience  v/ill  not   allow  either  to  assert  as   against    the  otLier 
acL  adverse   title  to  said  tv>ro-thirds   rnterest,   or  any  part  thereof;   and,  as 
said  Leary  did  not  at   any  time  have  the   legal  title   to  any  interest   in  said 
property,   it  follovTS   tliat    tiie  coitLnuiiity,   or  the  wifs  as  a  neinber  thereof, 
obtained  no  such  interest  tlieiein  as  cotild  be  asserted  against  one  having 
superior  equities. 

In  v.hat  -./e  have  said.  \'q  have  not   overlooked  tlie  point  made  in  the  in- 
terest of  the   appellant   the  Leary-Collins  Land  Corapany  tiiat  an  equit^^ble 
interest    in  ]a  nd  could  not  be  sold,  on  e:ecution.      In  our  opinion,   our 
statute  settles   tiiis  question  adversely  to  such  contention. 


I 


op.-:; 


The  decree  of  the  couit  tolow  ^vroL^erly  adjudicated  the   title  as  1)8- 
f'-eon  the   sevei  5I  :;?rtieE   to  the  action,    mid  must,   therefore,   be  affiiTied. 

Stiles   aiid  .uiiers,    JJ.,   concur. 

Dunbar,   G.  J.,   and  Scott  J.,  concur  in  t2iB  result. 

-i^C-^!^     --e<?^^-li^         z'     --^'^W^  '^^U'       '"'^     ^ 


y^ 


^-^ 


225. 


CHRISTOl-HSR  ZEIILIHTZ  et  al..  Responds ts, 
V.   J,  v/.  bLTlTG;,  Api^ellaat. 

(30  Wash.  6.)      1905 

AppeaJ.  from  a  jud.grGnt  of  fhe  superior  court  lor  Liucolu  county, 
Neal,   J.,   entered  T lay  E,  1904,  upon  findiujs  in  favor  of  the  plaintiffc., 
aftor   a  trial  on  the  rAerrte  "before  the  coui-t  vathout   a  jwrj^   decrcoin:; 
the  specific  porf onaa'uoe  of  a  contiact  to  couvej-  land.     Affirrrjsd,  . 

ler  GuriaTi.  —  J:is   is  an  action  to  eniorca  the   specific  ^performance 
of  a  contract  to  convo-'  land.      Tlie  follovdnG-  are,   in  substance,   the  facts 
fouixL  "by  the  covu-t:      On  Haich  11,  1902,,    the  agpollant,   Blak;^,   anj?.  one  C. 
S^  Thcnaes  _entered  into  a  \;ritton  a^-reeir.cnt ,  Tay  the  terns  of  \^iich  the  ~ 
appellant  ajrcod  to  soil  ar.C  convey   to   Tliennes. certain  real  prop_crty,_T.n 
tlie  to\m~^S^irn7''wr-SPv£S7  Lincoln  county,  V/ashin^-ton,  for  Jdie_  considera- 
tion of   oVi, 000^ payable  as  follovs:     $200  on  tine  c:;ecution  of  tl'Xi  con- 
tract, and  '1^2.00  ever^r  si::  raontlis   thereafter  until  the  "balance  of  SSOO 
should  be  yaid,   'vith  interest  on  deferred  paj/ments  at  10  per  cent  per 
anaum.     Tlie  :":200  a;^eed  to  "be  paid  on  the  e::ecution  of  the  contract  v.-as 
in  fact  paid,  and   the  "balance  was  evidenced  "by  promissory  notes  of  '^200 
each,  payable  at  tlis  respective  times  mentioned  in  the  contract.     At  the 
time  of  the  e;:ectition  of  tlie_c£>ntrac,t ,  _  Kaennes  v/as  a  married  man,  liavin^ 
_&  \nf>z  and  s"!::' children;   and,    tojcthcr  vath  his  wife  and  children^_en- 
"tered  into  possession  of^tixTproirerty::  and,  "between  that  time  and  the 
time  of  his- death:- which  occurred  on  ^ril  3,   1902,  put  permanent  im- 
provements on  the-proper ty,   consistiixj  of  ahoiTSO;   "barn,   ac^.ditions  to 
"bUildiujs  already- t>i:ireon,   of  tlie  value.  of_Ol» 000.     Thereafter,   at~the__ 
request  of  t:. ,   'i^yellar.t     Hiennes  and jwife  paid  out  to  the  appellants 
use  vl50  for  labqi^^wliichT sum  Giey  were  entitled  to  have  credited  as  a 
payment  on  the  contract  of  purchase.     On  Karch  2,   1902,    Siennes  tendered 
to  the  appellant   tlie  balance  due  on  the  contract  and  doma.nded  a  deed  to 
tiie^remises7 "but" said     tender  and  the  request  for  a  deed  were  refused. 

It  was  ^further  found  that  C.  S.   'aiennes  had,   on  Septsra"ber  16,   1902-, 
sijned  a  v/rittcn  a^Teement  purporting  to  surrender"  to  the  appellant  all 
hiE_  interests   in  the  contract,  "but   it  vas  fouixL  that    Ihis  was  not  Ei{^edi-.^^ 
or  aG,Teed~to  "by   tLio  v/i'fe  of  OJieimes,  and  v/as  not   intended  as  a  surrender  >^ 

oi"  TlienncE'    interests   in  the  property,  "by  either  of  the  parties,  "but  ^7as         ^ 
101    the  pur:,oj;o  ol  jrotjctin^-  Tlioimes,  from  certain. _of_his:_c>edi  tors  vSio 
had  •bejun.actions_ae;ainEt-him.,   in  which  actions,  the  propertjiLjira^liTEely 
to  "become^involved. 

It  v;aE  founc'.  furGier  that  Tliennes  died  on  .ipril  3,   1902;    tliat  the 
respondent  Zeimantz  is  his   administrator,  and  tliat  the  respondent  /imelia 
Thennes   is   tie  widow  of  C.   S.   Kiennes,  and  the  guardian  ad  litem  of  the 
minor  respondents .      It  also  appeared  that    the  respondent  Amelia  Siennes, 
together  mth  the  minor   respondents,  liad  been,  at  all  times  since  the 
4&ftth  of  Co  5.   Tliennes,   in  possession  of  the  property,    tiat   they  hac.  tend- 
ered to  appellant   the  balance   thsy  thought  to  be  due  on  the  contract,  rjid 
paid   the  monej^  into  court  on  the  commencement  of  fioic  action,   tliat  tl^ 
tender  vra.s  refused  by  the  appellant,   not  on  fiB  g'"0^^»^  that  sufficient 
was  not    tendered,  but  on  the  -round  that  he  -.^a-s  no  lon:;er  obli:;ated  to 


227. 

loerform  tho  contract.     The  amount  so  paid  \'ras  less  tha:^  the  coT^pt  fiaolly 
foujxl  to  te  due,    axd   the  respondents  were  directed  to  pay  into   court   tho 
difference  'bctv/eGn   tho  amoujat  tendered  and  tho  a:r.oimt  found  to  to  due. 
On  tlTis  beina-  dcno,  a  decree  v;a.-  rendered  directirc  the  appellant  to  con- 
vey the  property'   to  the  administrator  of  tho  estate. 

It  is  said,  also,   tliat  the  purported  release  of  the   contract  trj  C. 
S     Thonnes  is   o'bii3'atnr3'-  on  the  recpondeiibs,  even  thou^  fraudulently 
made,   on  the  principle  that  a  transfer  of  property  raade  to  defraud  cred- 
itors  is  valid  as  'bctvoen  the  parties,   and,  bein^  valid  as  'between  tho 
parties,    is  valid  as   to  the  heirs  and  devisees.     But    tiis  rule  cannot 
apply  here,  even  conceding-:  that  it  would  in  any  such  case,   as  this  as- 
si:;niiient,    if  made  in  jood  faith,   -.vould  not  have  had  the  effect  of  cancel- 
iiiG'  the  contract.     Ihe_^ interes t  acquired  by  Thennes  and  wife   in  the  prop- 
ertj'  by  tie  con'rract  v/as  coaiT:iunity  propcrtj^,  and  coire  affirmative  action 
on  the  \/ife^^pfrrt,  'Tn  connection  vdth  the  release,  v/as  required  to  maice 
it  valid.    Jii  tiJ.s  releose  LIrs.   1!hennes  took  no  part;  ^in  fact,    it   is  not  " 
shovm  that  she  even  loaev;  of  it  until  after  her  husband's  death. 

On  the  whole  we  think  the  evidence  supports  the  findjnjs,   and  tliat 
the  findings  suppiort  the  judsment.     The  judgment  will  therefore  stand 
affirmed.  _.  - -,  v 


I 


p 


228. 


THOIIIS  BOJEPlS  Gt  al.,  Ap;,::©  11  ants,  v. 
CIDPJjIiS  \I.   110(1)  Qt  al.,  RespondeiatD. 

(52  T/ash.  384,   100  p.   846)1909 

Appeal  from  a  .iudsirsut  of  the  superior  cotcrt  for  Xinj  couuty,    Gil- 
liam, J.,   GntGrod  llarch  10,   1908,  upon  fiudin^'S   in  favor  of  the  defc:xl-_ 
ants,   after  a  tibial  before  the  court  vxthout  a  jury,   in  on  action  for 
(£i5a:;jes  far  the  breach  of  a  contract  to  convey^  real  esTatol     SffirmeHTT 

Fullerton,   Jo~In  1905  tlE_aE£ellaJat_Elizabeth  Bov/ers  and.  tie  re- 
spondents, acti:3s  throu^a  their  a^ent,  ^one  Julia  A.  Itoderwood,  entered 

"into  an  orai""contFact  whereby  the  appellant  agreed  to  "buy,  and  the  re- 
spondentsa:j^'e,ju'to_sell,  a  certain  tract  of  la:2d,  .situated  in'ITihs 

"counts,   fOr'lTcoZsi deration  of  $700.     At  the  time  of  raaldns  tie   contract. 
Firs,  ^ov.-ers  paid  upon  the  pmchase  price  the  txm  of  ten  dollars.     lirs. 
Bower 3  and  th&  anient,  who  seetaed  to  have  made  tloe  contract  in  tie  absence 
of  third  persons,  diiiacree  as  to  its  precipe  terms,  but  it  appear:-  that 
Lire.   Bowers  .^nade  aviall  payment:,  on  the  piirohaco  price  from  time  to  timSi 
v^aaich  asiresated  on  E  opt  ember  6,~1906,  the  date  on  vrtiTch  tho  lact  payment 
was  made,   the  cum  of  (:100.     nothing  further  was  don©  in  the  oatter  until 
llai-ch,   1907,  \/hen  the  respondent  Charles  "£7.   Good  waited  upon  rj:c.  3ovqti 
isd  told  her  that  he  could  wait  no  longer  for  the  balance  of_,  tle_  purchase 
g^ce.     Tliis  call  was  made  upon  Friday,  Ilarch  1,   1907,   and  llrs.  Bowers 
desired  him  to  ^ive  her  until  the  next  iionday  in  -.Thich  to  raise  the  money. 
Eiis  he  refused  to  do,  but,  as_she  testifies,  did  a^^^ree  to  ^ive  her  until 
the  ne::t  day  at  noon.     She  further  testifies   t::at  ahe  appeared  at  his^of- 
f'ice  on  the  next  day  at  noon  vath  the  money,   ^en  Good  refused  to  receive 
tt;  declaring  that  he  -..ould  not  carry  out- the  contract.     On  Ilarch  4  Tnere- 
affer,   all  raonejr  paid  "bj  "ij-s.  Bowers,   and   ten  dollars  additional,  vas  re- 
turned to  hor  in  settlement   of  her  rights  under  the  contract. 

Ihic   action  was  be^un  by  Ilrs.  BQ^-'ers  and  her  husband  in  'lay,    1907, 
to  recov~er  damasesfor  the   breach  of  the  contract  of  Eale_.     To  a  com- 
"Plaint  alleging     the  contract  aM   its  breach,    the  respondents  first  ans- 
wered by  a  general  denial;  but  on  the  day  the  case  was  called  for  trial, 
they  obtained  permission  and  filed,   over  tlie  appellant's  objection,  an 
amended  answer,   in  v;hich  tley  denied  the  contract  as  alle^-ed  by  the  plain- 
tiffs, and  set  up  affirmatively  an  oral  contract  of  sale,   the  failure  of 
the  plaintiffs   to  perform,  and   its  subsequent  settlement  and  release. 
To  tins  a  reply  v/as  filed,   averrir^  that  the  money  returned  to  la^s.  Brov.n, 
ard  allejed  to  be  in  settlement  of  the  contract  betv/een  the  parties,  was 
so  returned  without   tin  ioaov/ledje  or  consent  of  Iier  husband,   and  against 
the  v/ill  of  rirs.   Bowers,   she  beina-  induced  to  accept  tlie   same  by  false 
and  fraudulent  representations  made  to  her  by  }'it.  C-ood  and  his  gs^nt  Ilrs. 
Under-..ood..     On  the   isstes   thus  mad-e,  a  trial  vi^as  l^ad  before  the  court 
v/ithout  a  jurjr,    result  in:j  in  findings  ain.  a  judgment   in  favor  of  the  re- 
sx->ondant . 

On  the  merits  of  the  controversy,   the  court  fovind  that  tlie  re- 
spondents had  returned  to  the  appellants   the  several  payments  that  had 

bean  made  to  their  a"cnt  for  them  v.lth  interest,   and, 


229. 

"I!liat  said  money  co  returned  ty  the  defendantc  v/at  returned  to 
thorn  and  paid   over  to   them  on  or  atout   tlae  4th  dajr  of  Ilarch,    1907,   in 
full  catiGfactioii  aud  settlement   of  all  doaliASC  theretofore  hsd  bet\7een 
the  plaintiffs  and  defendant t  on  account  of  caid  lot,   and  on  account  of 
the  moneys  paid  "by  plaintiffs  to  defendants'   aG'ent  as  aforesaid,  and 
th£it  said  cum  of  money  v/as  accepted  by  said  plaintiffs   in  full   settle- 
ment and  liquidations   of  all  transactions   theretofore  occurrin:;  'betv.-een 
the  parties  hereto  on  account  of  said  lot,  and  tliat  at  the  time  of  said 
cetftlerrent,   the  said  plaintiffs  absolutely  released  and  discharged  said 
defendants  from  any  claims  or  demands  that  said  plaintiffs,   or  either 
of  them,  mJ:;ht   or  did  liave  a::ra-inst  the  defendants  on  account  of  any 
transactions  rel£,tin5  to  said  lot,  and  at  tie  time  of  said  payment  to 
plaintiffs  of  tie  money  tl^retofore  paid,  v/ith  interest,   all  contracts 
or  asreeirents  relating-  to  said  lot  were  "bir  mutual  consent  anc.  for  a 
valuable  considei-ation  rescinded,  cancelled  and  held  for  nanz^t." 

The  ^pgllants  contend,  however._tligit_  the  settlement  -Tas  induced 
by  conspiracy  and  fraud  on  the  part  of  Good  and  his  a^ent ,  but  in  our 
o^Jiiiion "the"  eviaKaCe" does  not  support  this  contention.     Lire.   Bowers' 

""testimony  shov.x,  that  they  did  no  more  thaji  state  to  her  their  vie\7S  _of 
her  rights  under  the  contract  of  sale*  and  this   at  a  time_af ter_di£fgr- 
erces  had  arisen  between  tliem,  and  vidle  the  parties  v;ere  dealing  at 
arms  lGn:jth,  "and  v.'lien  che_had_  rpason  to  suspect  their  motives  if  they 
were  other_  tliaa  honest. __Under  these  circumsta:a:es,.  we  think  it   too       H-*-W\ 
much  to   say  that  Ilrs.   Bowers  was  either  aisled  by  the  respondents  or  co-'^'    p 

"Srced_by_then  into  doin^  something  against  her  mil. 

It^is   ur:;;ed  also  that  Ilrs.  Bowers  v/as  without  authority  to  ma'.<E_a 
settlement   of  the  rights  acquired  by  herself  ard  her  husband  v/ithout 
Wr  husband's  e::press  assent,   because  the  interest  acquired  by  her  in 
"'th'B"  land  was  coiiimunity  property.     But  \/e  thinlc  the  husband  is  estopped 
Trcra  raising  this  question.     In  this  state   the  management  aud  control 
of  community  property  is  vested  in  the  husband, _and  the  wife  cannotr, _   ^^'^^-^^ 
mthout  his  consent^  make   any  valid  contract  vath  reference  thereto,        -L— -V^ 
unless  it  be  for  necessai'ies  for  herself  or  the  family^     Vhen,    there-  \ 

fore,   the  husband  laio\;ingly  perniiB  tlx  wife  to  deal  vn.th  the  cormunity_ 
property,  his  consent   to  her  acts  ard  all  of  her  acts   is   implied,   and 
he  cannot"  afterwards  hold  to  those  which  redound  to  his  benefit  and  re- 
pudiate  these  \iiich  are  against  his   interest.     He  must  accept  the  con- 
tr^c^L^§-2^^'--®^***J'^*y'5~^^^^^^diarfce-it— as  _an_entirety,   3n"d~in^this   ixi- 
^a);:fce  he  will^not--be-perriJit-ted_to_£ai''_that  hi£~wife^had^authority_to 
"contract  for  the  land,  hut-did  not  have  authority  to  settle  and  relin- 
quish any  right  acquired  thereunder.      The  judgment   is  affirmed. 


i 


230. 


JOHN  ^'PIIITSER  et  al.,  .'liTie  Haute,  v.  WAITER.'..  I'.ILIER 
et  al.,  r.espondoutc. 

(98  "uach.   6CiL,    1917) 

iiiJpeal  from  a  jud^-aent  cf   the  superior  court  for  'Valla  Walla  coi:::t7, 
Hills,  J.,   ea'>ered  I!arch  2,   1915,   upon  tlie  verdict  of  a  jury  reucLared  ia 
favor  of  the  dei'endaats.   in '.an  action  of  unlawful  detainer.  Reversed. 

HolcomlD,   J. — Appellazits,  ^byjanla'.vful  detainer  proceedinss,   soujit  to 
recover  pot^Lsr. ;.iqu  oi_a^ricultuv-al  lands  descri"bed~in  their  coaplainty 
.'.!"  the  cloce  of   tli3  evidence,  appellants  •onsucceEGfulljr  moved  for  a  ver- 
dict to  "be  directed  in  tlieir  favor.     The  verdict  of  tiie  jury  in  favor  of 
respondents  roculted,   ac  appelli^its  clai,-.i,  from  erroneous  instructions. 

'^e  lands_in  question  were  uixLer  leai.e  "by  appellants  to  one  Eudio  on 
January  17,   1910,  for  a  term  of  five  years  conmencins  October  5,   ISOQ, 
and  terminatin:^  October  5,   1914.     Before  tl-£  end  of  the  term  and  -^.hile  in 
possession  under  the  lease,   on  about  :iarch  1,  1913,  Rudio  sold  to  respond- 
ents a  lot  of  persoijal  property  and   G^ie  plovdnG  and  surniasr  fallov/inj  on 
the  leased  premises;   and  also,   on  Ilarch  17,   1915,  P.udio  aad  wife  executed 

_an  ins4; ruaent-in-T/ar-i^aias  -aH«3^ stoisamvledged  as  a  c'.eec-,-  By  whiuhrjtlluy:  a«- 
leased,   reliaouished.   and  Q_uitciaimed  to  appellants  all  their  ri^ht,   title 
and  interest  in  and  to   the  lands   in  cues ti on  and  their  leasehold.     3ii3  in- 

,  strunent  v/as  lefTl^  escrovj  by  Huc'.io  a.'j£-  respondents  pendios  final  arranse- 
mentc  bev;teen  then  and  appellnts.     Tliere  t/as  also  drav/n  a  nev/  lease,   to 
be  executed  by  appellants  and  res:.^ondents,  v.-hereby  the   same  premises  -.-/ere 
to  be  leased  by  appellants  to  respondents  foi  a  terra  commencing  Llarch  17, 
1913,  and  encUn;;" October  5,   1914,  >/itIi   the  option  to  respondents  of  renew- 
ing the  lease  at   i  ti.   e::^.iration  for  a  period  of  tliree  years   "if  they  so 
desired."     Mrs.  Lproit..er,    for  some  reason,   refused  to  join  in  the  es- 
ecution  of  the  nev;  lease   to  resxjondents,  and  it  \7as  never  eicecuted  by  her, 
but  was  bjr  her  husband',  ^.lone. 

It  seems    to  be  uiidisputed  tliat  the  real  estate  is  oo  m-jiinity  real 
estate  of  appellants.     Respondents  v/ent  into  possession  of  the  land  on  or 
about  March  17,   191S,  ard  remained  in  possession  more  than  £i:cty  days 
after  the  termination  thereof  on  October  5,   1914,    gnd  continued  to  hold 
over  and  produce  another  crop.     On  October  6,   1915,   appellants  caused  to 
be  served  on  respondents  a.  notice  to   cuit  anf.   surrender  the  premises,   as 
their  lease  had  e;;pired  October  5,   1914,  and  that  thjir  subsequent  holding 
over  for  a  further  period  had  e:;pired  October  5,   ISlo;   tendering   liiem  t'sB 
sum  of  yeso  as   the  value  of  su^xier  fallo-./in^  land  on  ^a  premises  for  the 
ensuing'  crop,   at  a  stipulated  pricie  of   72.50  per  acre  under  the  provisions 
of  the  ?>udio  lease.     It  is  hero  noted,  ho-:ever,   tliat  the  same  terms  vere 
specified  in  the  nev;  lease;   in  fact,   all  the  terras  vrere  the   same,  e::cept 
the  Parties  and  the  option  to  renev  in  die  ne'-v  lease,  and  a  difference  as 
to  furxiiiaM.'C:"  saclci.   to  co:_tai:'.  the  le-^oi-s*  ::et  portio:.  of  the  trnoLhed 
C;rai:.;    the   old  leaae  providi:^-    ihat    tlie  le^seow  L-hould  fvir;-.isla  the  sacl:^  , 
the  i.eiv  oi-e  piovidi:.-  that  they  should  be  fui~::ished  by  the  lessors.     IHiis 
last  differe:-ce,  Iiov.-ever,    ii:  sloo-::  to  have  bee:,  a  mistaJze  of  the  scrivei.er'. 


231. 

a;xL  the  reti.o:iCe:--to  uo  ix  .c'-erotocxi  a.ji,   -.vhile  i- .  i:o:.:ejMio:-,  furidwhecl  tlia 
sackc  for  tlie  leccorc'  >ortio:-.     Both  leacec  o©:-tai::ed  a  CDiiditio:^  a:,ai-.^;t 
culiletti::^  or   ao:ji_.:iae;  .t  "by  tlio  lascee.  \at:-.ov.t  tliQ  -.vi-itts:.  co:-.ie:.t   oi' 
lewcorc.     Ho  \v:-itte..  co:xe. .t   to  ai.y  ai.wijuae:.t  "by  Huc'.io  to  recj?o:.de:.t^ 
appears   to  have  Taee:..  ^ivo:.,  ax",  i:.  a:,::_:ella:.tc'  :.otice  to    quit,   cei'ved  oi. 
recpo-'.der.t:.,   t:j3:e  xl  a  declaia,tion  that  veGpo:xlG;.-tc  "arG  operati:^"  'x.dev 
the  lease  of  Hudio,"  purcl-iaced  by  reEpo:-de:..tc.     \ll\e:.  Hudio  reliixuiched 
Ml.   lea^-e,  lae   OT,.'ed  appella-.ts  Ol,900,  \7iiicli  appellai-tc  required  recpo:'.d~ 
e:it:,  to  aocuma  and  pay,   together  xath  OlOO  additional,  \/hich  t:-£y  acciyned, 
save   iheir  note  ior,   aiid  afterr/ai-dc  paid  ia  full.     ?tet;poiJie:itc  paid  Radio 
$7  .,650  for  tiae   ctock  a:.d  other  percoiial  property  ovr..ed  a:,d  uced  hy  them 
Oil  ti.e  premicec,   a:ji  the  $2,000  to  appellai-tc  ac  co:.cideratio:.  for   the 
tra:icfer  to  then  of  tie  Ltock,  perco:ial  property  ai.d  L.umitier  fallow  ai-d 
plowir.j  oil  the  ploxje  a-.d  a  leace  to  them  for  a  tei-m  of  yearc . 

Of  all  thece  facte  arjd  the  tra:xactio:.c  vath  Kudio  ori  the  part  of 
respondeat:;,   appella::tc,    i:. eluding' lli-c.  Spreitzer,  had  fcov/led~e.     On 
llai-ch  17,  1913,   rs.po::de:.tc,  v/ith  the  lGio\;led-e  of  both  appella;.tc  and 
without  objectioi-,  ',/e;.t  into  poccection  of  the  premiGec.     Itrc.  Spreitzer 
had  ajreed  to  enocute   tie   lea^e  to  recpondentc,  "but  Ions  af tervvai'dc ,   on 
fip.di:—  that  there  \-cz  iomethinj  in  it   that  the  old  a^Teement  did  n.ot 
have,  refused  to  v,i\,y.  it.     Duri:^-  all  the  time  reopondentc  were  in  poc- 
secsion,    tlie  rent  was  rejularly  paid  according  to  the   terms  of  either 
lease,  and  reoeived  a:.d  accepted  vdthout  objection  by  appellant.     Eie 
premises  were  properly  farmed  according  to  the  stipulatioix  ii-  the  lease. 

The  coui-t  cubmtted  the  case  to  the   jury  by  instructions   iu  accord 
tath  tlie  theory  of  the  defense,  to  th£  effect  that,  a  prepondera:.ce  of 
the  eviderxe  so  justifyin;^,   a  lease  for  a  term  of  years,   althouc;h  re- 
quired originally  to  be  in  writing  a::d  sic;ned  ai.d  aclc-Owled:;ed  by  the 
parties  thereto,  may  be  so  effectually  ratified,   acquiesced  in,   aiid  per- 
foitaed  as  to  estop  the  dissenting  party  to  question  it,   s:'A  be  thereby 
established  as  effectively  as  though  it  had  been  eicecuted  \ath  all  the 
required  formalities  of  lav/.     The  jury  were  charged  that,   if   they  fou::d 
by  a  preponderance  of  the  eviden.ce  that  resporxlents  occupied  the  premises 
under  the  new  lease  a:-d  not  u-ider  the  R-udio   lease,   a:-xL  if  they  found  that 
tlie  new  lease  \'vas  bin.din:;  upon  Jlrs.  Spreitzer  by  lier  having  a^i-eed  to 
enecute  it  and  respondents'    occupyin--  the  premises  for   t\TO  years   o:   mors, 
fa^uuho  thaw  aix.  returnr.;:;  rentals  in  accordance  vath  the  lease  risaed 
\>y  Johji  SPreitaer  ?lone,   the   consent  of  Ilrs.  Spreitzer  bein^  ^-^^  P^^- 
cumed  a-.d  she  estopped  to  deny  the  validity  of  the  lease,  a:-d   tl-at  re- 
spondents continued  i:.  possession  aiid  paid  the  rent   to  appella::ts  accord- 
ing to   the  terms  of  the  new  lease  after  October  5,   1914,  by  and  v.dth  the 
consent  of  appella:itc,  such  continua:iC6  v^rould  be  a:i  erei-cice  of   tlie  op- 
tio:-.  to  lease  the  premises  for  the  additior.al  tliree  years  "vaaich  would  be 
binding  upon  all  parties,  no  nev/  lease  i;. ':'ritinG;  ox  notice  thereof  be- 
ii-j  necessary.     Of  this  su'bMiSwio:-.  j:/.   i  .::t-UCtions   thereon,  appellants 
conjplatn.- 

Th3.t  the  i-elation  of   landlord  a:d-  te/.snt  betv/een  the  parties  v/as 
established  is  clear.     But   that  it  vas  not  established  under  the  orig- 
inal Rudio  lease  is   equally  clear,   notwithsts-idins  the   subsequent  decla- 
rations of  appellants.     Tlie  minds  of  all  the  parties,   at  the   time  of 
the  transactions  bet'-'esr^  theu  ■.^hen  ^.udio  surrendered  possession.^  met 


232. 

upon  the  release  of  Rudio.     He  formally  ciirrendered  pocceccion  a:.d  re- 
leased a:id  relj.iiq-uiched  hie  lease  "by  a  formal  co:iveya:xe.      while   it  was 
nominally  placed  in  escrow,  all  the  evidence  goes  to  cuhctantiate  tl:ie 
fact  that  the  lossorr.  ai^cented  to  his  surrender  ar.d  that  they  accepted 
responde::ts  as   fcen,=ints   nn  his  place.      Ihe  old  lease  was  terminated  and 
its  fu:ictions  had  coatied.     Uor  can  it  "be  said  tliat  there  was  any  form, 
or  cubsta:ice  of  a  transfer  or  ajisiGnraent  of  his   lease  "by  Rudio  to  re- 
spondents.    The  r^-t'ore  of  tiie   instrument  e;:ecutod  by  him  was  not  of  that 
character,  and  respo::dents  ne^-otiated  vath  appGlla:its  for  a  new  lease 
to  them  vhich,  aocordi::^  to  their  evideixe,   appellants  a^^reed  to  give. 

So  far  a^J  the  v/riter   is  concerned,  were  it  aii  oriG,l:ial  question  in 
this  jurisdiction,  he  would  feel   inclined  to  declca-e  such  a  state  of 
facts  as  v;as  chovrn  arxL  resolved  "bj  the   jury  in  favor  of  resi>oiidentc , 
particularly  \Jhere  the   lessees  actually  purchased  tlB  term  for  years 
from  the   cctm^mity  for  a  larje  cum,  sufficient  to  estop  "both  members 
of  the  community  of  lessors  to  deny  tie  validity  of   the  lease  for  its 
full  and  optional  term.     Were  they  tvra  joint  ov^ers  of  tie  premises, 
not  a  community,  Jolm  Spreitzer  would  certainly  he  bound  by  his  deed, 
and  also  by  his  acts  and  conduct.      The  other  party,   in  such  circumstances 
as  here  detailed,   disre:,'ardii:i,'"j  the  nere  payment  aid  receipt  of  annual 
rent  vJien  due  as  an  act  of  estoppel,   ou:jht  to  be  bound  by  her  acts,   con- 
duct,  and  silence.     And  sirce  a  married  v/oman  has  by  lav;   (Rem-   Code, 
Sec.   5925)   "the  same  ri^ht   ...     to  acquire   .      .      .  and  dispose  of 
every  species   of  property   .      .      .  as   if   .      .      .  she  were  unmarried;" 
and  "contracts  may  be  na-de  by  a  wife,  ard  liabilities   incurred,   and 
the  same  may  be  enforced  by  or  against  hei'   to  the   same  entent  and  in 
the  same  manner  as   if  she  were  unmarried"    (Rem.   Code,  Sec.   5297),   she 
should  be  bound  by  her  acts,   conduct,  and  silence  as  if  a  feme  sole, 
to  the  Saras  entent   as  any  other  person  sui  juris. 

Jut ,  unfa- tuna tely ,   the   statutes  provide  that  all_ conveyance s__ of 
real  estate".  orjmsLJjaterest  therein^_  aKd^l'all  contracts  cren.tin,^_or 
evidencinj  any  encumbrance  upon  real  estate   shall  be  by  deed"   {Rem_. 
0ode^SecT^745) ,    and   "property  .'    .      .   acquired  after  marriage-by 
either  husband  or  \,n.fe,    or  both,    is  community  pi-operty"_  (Rem.   Code, 
^ec'.^Sgi?);   and  "the^husband   .     .     .   shall  not  sell,  convey,   or  encum- 

Jjer  the  communit7"real  e::tate,  unless  the  wife  join  with  him  in  execut- 
4Eo"  the  deed  or  otlici'    ini;truiient   of  conveya.i.'tr. o  by  v/hich  the  real  est&te 

J;S_sold,_con7eyedj_^r_encj^bered,    and  such  deed  or  other  instrument  of 
Ciinyeyanc_e_fflU5_tJbe^_acl3iQWledS'ed  by  him  and  his  wife."    (Rem.   Code,  Sec. 
5918.)     Hence  it  has  consistently  been  held  thata  contract  to  lease      V- i;;- 
-ccmrounii  y,  land,,  made  _by_a-man--^ied-man  vdthout- his -wife  joining-  him  in     ~^ 
the  manner.  provldecLby__the   last  quoted  section,   the   lessee  loiowinj  of 

_its  coEMjnity  character,    is  clearlj'-  in' contravention  thereof.     Holyohe 
V.  JaclcCMi,   3  Uash'.   Ter.   235,   3  Pac.   841;  Hoover  v.   Chambers,  3  'Vash. 
Ter.  26,   15  Pac.   547;    Isaacs  v.  Holland,  4  ^Tash.   54 ,   29  Pac,   976;  Bro^^n- 
fieldv.  Holland,    63  'Vash.    86,    114  Pac.   890. 

Consequently,   as  to  the  wife  member  of  the  community,   the  facts  l£TQ  ^ 
show_t]a.t  ther"e  vas  no^thinc;  more  tlian  an  oral  a^Teement  for  a  lease,   and  ^^ 

L_cileXLC.e.,   and  conduct  viSiich  oujht  to  estop  h.er  to  der^  p^ 


^£^ks2-< 


a^ 


233. 
Sat  it^loas  teen  establiched  tiiatj   under  the   statute,  an  oral  lea^^^c 


r^t, 


or  an  oral  a:p.'eement  for  a  lease,  boiuj  interdicted  t;'  tlie   statute,  _can- 
•n5t  Tie  suKtainettT'ac  creating  a  tenancy  eixept  v3ien  the   leccee  ic   le^tj.n-- 
^~pos session  andjjg're"'l:ias  'boGu  part  perforoance,  and  then  only  as  a 
tenancy  from  monthTto  month  or  from  period  to  jiei'iod.,  Richards  v.  Redel- 
sheinierr36  V/a'cir.   3Z5,'i6  Pac.   934;  V/atkinc  v.  Balch,  4-1  'Vach.   310,   83 
Sac.  521,   3  L.  R.  A.    (IT.S . )  652;   Brovmfield  v.  Holland,   supra.     In  the 
case  of  a^Ticultural   laads,   vhere   the  tenant  enters  under  an  invalid 
lease,  every  holdin3'  over  for  more  than  si::ty  days  after  the   e:3?iration 
of  any  annual  rent  period  continues   the  tenancy  fa-  another  crop  year 
or  rent  period.     Rem.   Code,  Sec.    813;   Snyder  v.  Hai'din^',   38  './ash.   665, 
80  Pac.   789;    O'Connor  v.   Oliver,   45  Wash-    549,   88  Pac.   1025;  V/atldns  v. 
Balch,   ani  BrCTnTield  v.  Holland,   supra.     .'UxL   tl~je   eixl  of  a  period  is    the 
time  whea  the  rent  is  pajrable.     Snyder  v,  Hardinj,  "/atlons  v.   Balch,   and 
O'Connor  v.   Oliver,    supra;  Dorman  v.  PlOMnaii,  41  V/ash.  477,   63  Pac.  322. 

Here  the  end  of  a  period  occurred  on  Octoter  5,   each  year  of  occu- 
pancy,  and  holdinj  60  days   thereafter.     An  oral  lease  can  he  terminated, 
as  the  statute  provide:,   "by  vnritten  notice  jiven  at  the  prescribed  time 
"before   the  end   of  zzch  period,     '/atlciias   v.  Balch,   and  Dorman  v.  Plo\man, 
t-Tjpra . 

Under  our  statutes   and  precedents,   we  cannot  hold  tliat  an  invalid, 
unsigned,  and  unacIaiov/led:;ed  -written  lease,   or  an  oral  a^Teement  to 
lease  for  a  term  of  years,  can  "be  estaliliclBd  for  the  full  term  lay  part 
performance,   ratification,   arxL  estoppel  as  a^jainst  the  community  ovmer 
not  liound  ty  deed.      Hie  payment  aM  acceptance   in  advance  of  a  lar^e 
sum  of  money  for  a  lease  for  a  term  of  years  cannot  te  treated  as  pur- 
chase money  fo'  a  title,  l)Ut  only  as  additional  rent. 

The  tenancy  here   in  controversy  was  lejally  terminated  hir  due  no- 
tice.    The  case  v;as   improperly  submitted  to  the  jury  upon  the  lav;.     For 
th6  fore^oin^i'  reasons,    the   .lud.Tnent  Jf  reve: sed  and  a  jud^pnent  ordered 
for  the  appellants  upon  their  paying  tie   amount ^f  their  terder. 

Ellis,   C.   J.,  Parker,   and  Mount,    JJ.,   concur.       Y--"c3 


234. 


VETUTOn  IlimL'"-,  ac   Guardia-a  etc.,  .appellant, 
V.  VlilTOH -1.  2ATRJCI:,  KGcpondent. 

(105  T/ach.  442.     September  3,   1918.) 

Appeal  .flora  a  jud^^-rrsnt  of  tlie  cupeilor  couit  I'oi   fjpokaiie  county, 
HcCroslcey,   J.,   oiitered  ITovera'ber  25,   1917.   upou  f indiu:;G   i^a^avor  of^ 
tlie_(lef»a<iaiit.,    in  aii  action  'hj  s.  ^^Tiardian  to  recover  property  of  an 
insane  v/ard,   tried  to  tne  c6i:a:tT    Affirmed. 

Macliintosli,  J.— '"'nen  Gie  vaf e  of  the  defendant  x-atriclc  was  a£.judc;ed 
incane,   she  and  her  hucliaj.id  evened  a  bonce  and  lot  valued  at  about  Ol^^OO. 
.ifter  the  hunband'c  appoiir.tmeDt  ac  j-iardian,  he  cold   thi:;  property  under 
authority'  of  the  court,  haviu^  e::ecuted  a  boni  \.-itli  the   defendant   curety 
company  ac  curety,  conditioned  tliat  he  -jould  account  for  all  funds  com- 
iuC  into  his  pooceccion  an  :;;i;ardiau  of  hi£  v;ife'c  ectate.     Hiece  funds 
conciEted  coleljr  of  the  amount  realized  froa  this  sale,  and  from  them  he 
paid  claimc  against  the  ectate  and.  reci^-ned  hie  ^^Tiardianship,   tailing:  as  ^ 
hi-p  ovm  property  one-half  of   the  money  remaining'  in  his  hands.      Sie  plain- 
tiff was   thereafter  appointed  guardian,   and  commenced  this   action  to  ce- 
cure  the  restoration  of  the  sum  so  talcen.      The  question  here  for  ans'wTsr 
is.   Can  the  husband,  -Jho  has  been  appointed  juardian  of  the   estate  of  his 
insane  \afe,   convert  the  community  real  ectate   into  personal  property  and 
talre  one»-lial£   thereof  as  hxv  ov;n,   tathout  accountiuG"  to  the  probate  court 
therefor.;    or,    stated  a  little  differently,   doec  the  laanacement  aixl- con- 
trol of   tile  coiiimunity  property  remain  in  the  husbaiod.  notmthstaadin:;;  the 
insanity  of  the  \;ife  ^nd  the  appointment  of  a  guardian  of  her  estate: 

There   is  not  involved  here   tlie  hucbcnd's  duty  to  support  his  afflict- 
ed v/ife  and  to  provide  the  necessaries  z::f.  comforts  recuiiedi  by  her.      In 
the  li:,ht  of  the  fact  that  insanity  may  last  for  a  lon^-  period  and  pos- 
sibly a  lifetime,   aiid  that  the  communi.t:-  property  may,   in  many  instances, 
consist  of  a  business  tliat  requires  special  laio\.led:po  to  conduct,   the 
courts  \/ill  hesitate  to  tal:e  from  the  husband  the  manacement  and  control 
of  community;-  property  and  place   it   in  the  liands  of  the  v/ife's  :;uardian 
for  mana:;effient  during;  her  incapacity,   xmlesc   tie   lav  unquestionably  pro- 
vides for  this  ixethod.      To  deprive  tlie  husband  of  the  mana^jement  and  con- 
trol of   the  coramunit-y  property  \.'Duld  virtually  divest  him  of  his   interest 
therein,    and   if   tie  property  consisted  of  a  business   in  T.hich  he  \f3.z  en- 
ZOlz^^l,   it  \/ould  possibly  deprive  his  vmfortunate  rdfe,    in  a  s^eat  many 
instances,   of   the  support  vhich  she  is   entitled  to,   for  we  cannot  assume 
tliat  the  husband  v/oulc  in  all  instances  be  appointed  ^ardiaa  of  his 
T/ife's  estate. 

At  the  time   of  tlie  passage  of  the  act  vhich  relates   to  the  ^^uardian- 
Ehip  of  insane  persons,,  beinj  sections  1654-70,  P.era.  c.  Bal.   Code,   the 
first  coiaiaunity  property-  law  of  this   state  liad  not  been  enacted;    and.  vhen 
tliat  act  refers  to  prOi^erty  subject  to  the  control  of  the  ^-.-uai'dian  of  an 
insane   spouse,   it  did  not  have   in  contemplation  coimaunity  property,'-. 
Moreover,    the  lanyua::,'e  itself  of  the  not  does  not  include  community  prop- 
erty., Ir.d  sxx;h  property  been  in  e;:istence  r,t   the  time  of  the  pr.ssr..^'e  of 
the   ".ct.      The  r.ct  throuG;hovit  in  sper-'iin^  of   tlie  property  subject   to 


235. 

3u.axd  ion  ship  sperJcs  of  "their  est.r.tes,"  "the  est.?.te  of  cuch  ins-uae  person,' 
"the  est-.te  re-l  -xkL  penonal,   of  the  person  under  i;viiTC.i"r.sh.Vi>'i  "m-^nace- 
ment  of  hie   ectr.te,"   "proceeds  of  his  est.te,"     In  other  v;ords,  by  the  act 
the  :ju:.rLin  is  c,iven  the  mancsement  of  property  viiich   tloe  insrne  person 
possesses,     nd  the  3Uo,rdi:n  c-^n  only  e::erciEe   those  ri.jhts   of  m-Ji' .cement 
which  the  ward,   when  s.-ne,   ecu  Id  h-ve  e::ercised.     Th&  ^nxdirin  of  cm  in- 
sane wife  Cannot  tate  over  the  niana3em£nt  and  control  of   the   community 
property,    that  bein^^  {civen  to  the  husbani.     If  the  guardian.  v;ere  entitled 
to  tl:e  control  and.  raanaC'enEnt  of  the  wife's  half  of   the  conmunity  property 
the  property  \.ould,   of  necessity,  ha1?e  to  be  divided  in  some  manner*     In 
this   case,   the  comiTiunity  realty  having  been  sold,    tl:e  husband,   in  effect, 
divided  it  by  dividing-  the  proceeds,  .and,   as  Gu^^^iaJi*  -i^<^-  the  custody  and 
management   o?  one-half,  for  v/hichhe  accounted  in  the  probate  proceeding. 
Under  the  law,  he  was  not  obliged   to  do  even  this.     V/e  do  not  hold  that 
Gie  husband  is  net  bound  to  support  and  maintain  his   insane  wife  out  of 
community  property,   but  tlsre  are  waj's  in  v/hich  husbands  seekia^  to  evade 
that  duty  may  be  compelled   to  perform  it;  but,   as  we  have  stated  in  tlie 
^e^innin^j  of  tliis  opinion,   the  question  of  support  and  maintenance  is  not 
involved  in  tl-ie   case,   our  conclusion  merely  bein^  that  the  guardian  of 
an  insane  wife  does  not,  upon  his  appointment,   secure   the  management  and 
control  of  community  property. 


The  judgment  is  affirmed.  \r-~  ^ 

Ilain,  C.  J.,  Ilouut,   and  Eolcomb,   JJ.,   concur. 


\::i. 


-x^ 


Chadv.lck,   J.    (concuriing) — "/Ixen  tls  husband  had  accounted  to  tlie 
court  for  the  v/hole  property  and  -./as  allowed  to   retain   tl:e   one-half  tl'x. t 
was  his   ov.Ti,  his  dischar^-e  as  guardian  operated  as  a  distribution  of  funds 
vdthin  the  jurisdiction  ard.  keeping  of  the  court.     The  court  could  not  re- 
assert its  jurisdiction,  and,  for  the  same  reason,    tlie  successor  guardian 
caja  assert  no  interest  in  the  divided  f urd. .     I  concur  upon  tZiis  groimd. 


/f. 


y^     y  ^ 


^^:>^     ^p^^^^i-<a.<-^^^--^  "22^^ 


236. 


E.  C.  KilUPIl'LH  et  al.,  ReEpondents,   v.  \7ILIJ:.M  D.. 
tERKIHS  et  al.,  .Vppellants. 

(114  \7ash.  40 „      1921.) 

Appeal  from  a  ji3d,3n3n-t  of  the  suparior  court  for  Kinc  county,   Prater, 
J.,   entered  .^pril  28,   1920,  upon  fiiaiiass  in  favor  of  the  plaint i£f  in  an 
action  for   specific  performance  and  to  quiet  title,    tried  to  the  court. 
Reversed.  • 


Holcomh,   C.  J. — -Jhis  action_l£_fQr_t_:;a.  specif  ic  performance  of  an. 
alleged  agreement  fer  a  five-year  lease  of  coraraimity  real  property  belonc- 
inj  tD   defendants. 

Defendants  appealed  from  t::s  judgment  of  t]:e  trial  court,  decreeing 
specific  performanb'e~lioldins  t-^-xt  plaintiffs  v;ere  entitled  to  the  oc- 
'cig)ancy  of  the^:>reinisjc  as  lessees  tliereof  for  a  term  of  five  years  from 
Ifoveraher  10,   1919,   cuie tin;:;  their  interest  and   title  in  the  leasehold_for 
such  period,  and  enjoining;  defeniants  from  distur^ins  plaintiffs  in  the 
possession  of  the  premises  as  lon^  as  plaintiffs  should  perform  tlie  temis 
a£d~croirdittojis  of  fiie  lease. 

On  April  23,   1914,  defendants,  u!x),  as  the  OTxiers  of  lot  11,  tlock 
16,   of  S.  A.  Bell's  addition  to  tls  city  of  Seattle,  v/ere  erecting  tlere- 
on  a  ■building;  to  "be  used  as  an  apartnaat  liouse,   executed  a  lease  of  the 
premises  to   G.  E.  Shonvood  aixl   .dfe  for  a  term  of  five  years  from  Septem- 
ter  1,  1914.     Tills  lea^e  provided,  ho^;ever,    tint,   in   Zie  event  tlie   huild- 
ins  v;as  not  rea:.y  for  occupancy  by  Septernlaer  1,   1914,   the  lease  should 
not  be^n  to  run  xmtil  the  building  v/as  ready,  v;hen  the  tisrij  should  run 
for  five  ye:J:e  therefrom.     In  accordancy  xiifa  this  provision,   it  was  Uov- 
Knber  10,   1914,   v/lian  t::e   term  be^^an,  and  it  was   to  run  until  November  10, 
1919.     On  February  20,   1918,   one  Driscoll  was  tte   tenant,   the  property 
h^iVin^  Passed  to  him  tlnrou^  several  h^ads.     He  was  liavin^  financial  dif- 
ficulties and  was  unable  to  mate  certain  needed  iinprovexents  on   the  pre- 
mises.    Amon^  otlaer  tliin^^s,   the  installation  of  coal  burners  or  furnaces 
was  necessitated  by  the  then  eriistdns  oil  shortage,  notice  havinc;  been 
given  tlut  oil  vo  uld  be  d-iscontinued.     Driscoll  thereupon  g;ve  up  his  ten^ 
anoy,   one  R.  L.  Lander  agteein::  with  appellant  Perldns   thr. t  Ijb  --'ould  take 
an  assi^-nmaat  of  the  lease,    aid  an  extension  thereof,  for  his  brother, 
Roland  G-.  Lan:,er.     Accor^insly*  Perkins   s^nt  tlie  following^  letter: 

Seattle,  v/ashin^ton,  February  20,1918. 

"E.  G.  Lander:     "/e  will  draw  up  the  necessary  e;:tension  of   tiie  pre- 
sent lease  of  tha  Sheridan  Apartraents,   or  make  out  a  nev;  lease  convnencin^ 
Hoveraber  10,   1919,   for  a  period  of  two  years  at  $9  per  room,  and  the  tliree 
following  years  at  $9.50  per  room;   tezms  and  conditions  similtt  to  the 
present  lease,    ;ixi  th£  present  raortgase  on  C^e   furniture  as  security  to  be 
e::t ended  or  ^-ranged  for  by  you. 
"■iDP:A-  Yours  truly,  hm.  L.  Perkins." 


K«>-^w.©:^^:^^»''TA^    JL     -- — Y*^ 


I 


237. 

H^recfter  appellrjats  refused  to  on  tor  into  a  formal  asreemoat  lo:. 
tLe  erctensiou  of  tlio   lc.:se  or  tl.e  makiuj  of  a  nev/  lease,    in  accordance 
rdt:i  the  ttrns   znd  co-.iciitionE  of  tlic- letter  in  ruer.tion,  and  notified 
resioondeutG   tliat  tliey   (appellants)   would  not   te  "bouud  thereby  and  that 
respondents  rav.^t   t;arrvjnder  the  prunioes  on  ITovember  10,   1919.     Respond- 
ents   tijen  brcu^-ht    the  action  for   specific  'perforiar-nce  of  tl.e  alle^^-ed 
ri^roioin'^nt    in   (f.io.r,  tn.  in  = 

Various  rnlir:^5  o-£  the  tri^l  court  are  assigned  as  error,    tut  v;e 
tMnlc  a  decision  a^  to  v/liether  the  failure  of  Ilrs.  I'erlcins  to  sign  or 
actoc-./ledse  the  a^rrerr.^nect  for  th.e  extension  of  the  old  lease  or  the  e:z- 
ecution  of  a  ne-,v  one  e::cused  compliance  therevdtli;    or  vliether  the  cir- 
curast:JiceE  of  the  case  „re  sucZi  as   to  estop  her  from  denying  the  valid- 
ity of  the   G^'jX'eanent,  -r.lll  "be  conclusive  of  this   appeal. 

::rs.   Pe_rk.-iriE   testified  to  the  effect  tZiat  she  had  always  teen  sat- 
is f  ie^^jto_J2ave]]!^TT^12I^^;^^^Ie][cora^u^^ 

in^^jf  community  real  estate:    aad  the  cuestion  is,   vfB^.er  she   iE^n6\7 
estopped  to  deny  his  authority  to  represeiit  h&r  in  this   transaction.     On 
tI:i.iE  questrion  of  estoppel,  responde::its  cita,   among  other  c-ises,  Youns  v. 
Porter,    27  Wash,   5ul ,    CO  Pac.   362,    an  actioji  for    specific  performcJice  of 
an  oral  asi'eement  to  convey  an  undivided  half  interest   in  certain  real 
and  personal  property/.     Specific  performance  was   there  decreed,  tut,  in 
order   to  sho.'  that  th^re   the  facts  v.ere  different   in  material  respects 
from  those   cf   the  instcjit   case,  we  tfuote  from  the  concluding?  portion  of 
tile   opinion  in  that  case   as  follows: 

"So  fax  as   flie  personal  property  was  concerned,    it  was  simply  an 
incident  of  the  real  estate;   and,  v;Mle  the  Td,fe  was  not  a  party  to   the 
original  agreomaat,    the  findjj::^  of  the  coui  t   is  to   the  effect  that  it 
was  at  all  ti;3£f.  c-istoTa.ry  for   the  hustciad  to  personally''  conduct  all  com- 
munity tusiness  of  hi^aolf  end  vafe.      'Uiis  he  ha.d  a  ri^it  to  do  under 
tl:e   law,   so  far  as   tlje  personal  property  was  concerned;   end   it  was  per- 
sonal property  v/hich,  under  the  agresraent  v.'ith  Hie  respondent,  was   in- 
vested in  thjs  pottery  plant.     Sh£   also  Imew  of  the  position  occupied 
ty  f.-e   respondent    in  relation   to   the  property,  for   she   joined  ■rrith  tlie 
respondent  and  hei-  husbcnd  in  the   Hease  of  the  property.     OtJier   testimony 
in  the  case  shcv;s  conclusively  that  she  was  cognizant  of,  ard   in  effect 
consented  to,    the  v/hole    transaction." 

It   is  plain  that,    on  account  of  the  difference  in  circumstances, 
that  case  hjis  no  tearing  upon  tZ:e  case  now  tef ore  us . 

On  tl::is  question  respondents  cite,  also,   the  case  of  Washington 
State  Bcnk  of  Ellensturg  v.  Dicteon,  35 'wash.   641,   77  Pac.   1067,   anotZier 
action  to  compel  specific  performance.     Respondents  here  rely  upon  the 
language  in  th.at  opinion  viiere,   referring-  to  the  contention  Qiat  the 
contract  for  tl.g  conveyance  of  commimity  property  there  under  considera- 
tion v/as  void  tecause  not  signed  ty  tl'B  wife,   ve  said: 

"But   it   is   not   the  rule   in  thns    state  that  a  contract  for  the  sale 
of  community  real  proper t;,'  must  "be  signed  ty  the  wife   in  order  to  te 
tinding  upon  her.     V7e  1-ave  lield  it  enough  if   the  contract,  when  made  ty 
tlie  hustand,  liad  the  sanction  and  approval  of  the  wife,    or  if  it  v;as  sut- 


2,-33 . 
sequently  rcitified  "by  her."      (Citing  aufcorities.) 

To  diEtin^nicIi  the  Diclcson  case  from  the  one  at  "bar,  it  is  only 
necessary  to  seh  ont  the  Iso-caage  of  the  opinion  in  the  Diclrson  case 
iamediate3y  foiTow.inej  the  aLioff'-"  qiJ.or.^tiou,   as  follows; 

"Here   Caere  was  toth  a  previous  a,nthorization  and  c  subsequent  rat- 
ificntion.     HoOrJidlens  himself   (the  hL:sb<:uid)'   testified  tliat  he  liad  talh- 
ed  the  matter  cv^r  v;p.th  his  \7ife  prior   tc  entering  into   the  contract, 
and  that  it  xra^  eisfnvei  5nto  with  t&r  toiov.ied.'je  ard  full  consent;   aiid 
it  ■'.'.n.ii  "(je  rP'TierTliured  that  she  joined  vdth  her  husband  in  a  deed  of  the 
premises   to  tie  ryRpondeiit. " 

It  may  "be  remarhed  here  th^at  Mrs.  Perlcins  does  not  appear  to  h^ve 
had  any  la3,o-.iec".33  of  tlB  letter  whicZi  is   the  subject  of  the  present  con- 
troversy. 

liiich  rel.ian^.e   is  placed  by  respondeiits  on  the   case  of  Zinn  v. 
Knopes,   11  V/azh..  Doc.  4£&,191  Pac.   822;   but  v;e  said  there: 

"The   testimony  e!1x>";s  that  the  land  was   the  separate  property  of 
the  h^usbar.d  He_iry  lihopes,   and   that  bein;^-  trns.    if  the   lease  v;as  other- 
wise £,ooa,   the  fact  that  the  vvife  load  not   joined  in    tlie  e:cecution  of   it 
is   immaterial.'' 

In  the  present  case,   the  property  belonged,    of  course,    to  the  com- 
muiiit;^'  consisting  of   a:i?pella:-ts  Perkins  nnil  T;ife. 

Eespondents   also  claim  that  the    case   of  Matzger  v.  Arcade  Bldg.  & 
R.    Co.,   80  Wash.   401,    K-1  Pac.    900,   J,,   p..  A.  1S15  .".  288,    lends  much  sup- 
port to  tLeir  coiitGiiti  o:.  in  respect  to  t'ae  question  ui.der  discussion. 
There  the  lea-^.e  in  question  \;as  xxnaclciov/lev-ged.      It  appears  that  the 
tena;it   there  h^ild  the  p'^'operty  u:.ider   tie   If^nse  for  a  co:.siderable   length 
of  time.     ETOitles  wo.ze  tnere  slicvx:  to  estop  t^^e  dei.ial  of  the  validity 
of  the   lease.      Tr:e  IIatr;/;er  case  was  later  cited  by  us  in  the  case  of 
Armsti»ongv.  Brjrlcett,   104  Wash.   476,   177  Pac.   355,  where   tte   lessee 
soi^ght  to  avoid  the  rule  governing  oral   leases  by  settir^j  up  certai:: 
facts  \^iich  she  relied  upor.  as  creaci::g  a:,  estoppel,     '.'e  said  in  the 
opinion: 

"■Hhe  mere  possessio:.,   the  payment  of  re;.t  and  the  conduct   of  a  bus- 
iness  in  the  usi^al  way  and  for  the  sole  benefit  of   tlie  tenant,   unaccom- 
panied by  circumstaiices  which  v/ill  create  a  conoideration  going  to  the 
term,  will  not  make  a;:  oro,l  lease  from  ponth  to  month  a  term  lease  rest- 
ii-g  i'i  estoppel.  '      (Citir.g  the  Ilatzger  case.) 

Andersonian  Inv.    Co.  v.  \';ade,    108  Wash.   575,   184  Pac.    327,   v/as  an- 
other case   involvii^-  thjs    question  of  estoppel;  but,   as  to  it,   as  well  as 
to  most  of   tlie  other  cases  cited  az^d  discussed  on  tlu-S  point,  v/e   say,    in 
the   la-gii^ge  suggested  by  coui.sel  for  respondents,   that: 

"Hie  numerous  defi:iitions   of  estoppel  ca:n.ot  be  weldsd  into  a  fi::ed 
rule   of   law.     Equitable  estoppel  rests  largely  upon  tlje    facts  and  cir- 
ciiDEtances  of  each  case.      CEie  cases  themselves  mi;st  be  looked  to  and  ap- 


239, 

plied  br  vra,y  of  scialogy,   rather  than:  by  rule." 

la  Spreitzer  v.  Killer,   9H  Wash.   601,    168  Pac,  179,  we  cited  the 
loiiguage  ol'Sec.  5913,  iljm.   Code,    to  th3  efiect   tiiat: 

"T!:ie  hiisbai^d   .      .      .   shall  r.ot  sell,  coisrey,    or  encumber  tl'^   con- 
miuiity  real  estate,   unless  the  wife  ,ioi:i  v/Lth  him  in  execiiti::g   the  deed 
or   otlxjr  ir.stni.m'SJJt   of  conveya-xe  by  v/luch  the  real  estate   is   cold,   con- 
veyed,   or  encuraberod,   c;:;c.  sTXh  deed  or  other  instrument  of  conveyance 
mills  t  be  acICiCv/1  edged  by  him  ai;d  his  wife." 

We  than  said:  • 

"He:ice  it  has  consistei^tly  been  ?ield  that  a  contract  to  lease  com- 
munity  land,  mao.e  by  a  married  man  -.athout  his  v/ife  joinir.g  him  in  the 
ma..ner  provideo.  by  the  last  quoted  section,   the   lessee  knowing  of  its 
commu:iity  character,   is  clearly  in  contravention  thereof."     (Citing 
authorities ) . 

■.7e  quoted,  vjxtli  approval,  the  above  language  in  the  recent  case  of 
HirJdiouse  v.  Wacl^r,   12  Wash.  Dec.  2i9,   191  Pac.   681. 

Expenditures  by  respondei.ts  are  also  relied  upon  as  part  performance 
rendering  the  proposed  enteusion  of  lease  bindirg  for  the  iie\r  term  upon 
both  spouses,  citing  IJatzger  v.  /j:cade  Eldg.   c;  R.   Co.,   supra,  which  is 
distiuguiSiied  ffora  tliis   on  the  grounds  stated  in  Grubb  v.  Hoi;se,    95  V/ash. 
200,   160  Pac.  4-21: 

"In  support  of   this  cause  of   action,    the  case  of  Hatzger  v.  Arcade 
Building  &  Realty  Co.,   80  Wash.  401,    141  Pac.   900,   L.  E.  A.   1915  A  288, 
is  cited;  but   ifiiat  case  is  diEtinguishablc.     There   *A,'    the  tenant,   at 
the  timo  of  ma'Ao^;  ths  loa-'^o,  paid  a  oon:^ '.deration  \4iich  went   to  the  en- 
tire term  in  addition  to  the  rental  to  be  paid  at  stated  periods  through- 
out the   tena;    'B'  put  in  a  new  front  in  the  storeroom  tipon  the  faith  of 
the  lease;   and   ?G,'    the  manager  of  defendant  companj',  recognized  the 
lease  as  valid  v/ithln  one  year  prior  to  its  enpiration.      In  this  case, 
no  consideration  vv'as  paid  for  the  lease  -naioh  went  to   the  entire  term, 
no  recognition  of   th. e  Isase  as  valid  v/as  made  -Jithin  one  3'ear  prior  to 
its  e:q?iration,  and  no  permejaent  improvament  was  made  by  the    lessee.    .    . 

"No  authority-  has  been  presented  which  -.vould  sustain  the  proposi- 
tion that  the  good  "Till  of  a  business  may  operate  as  a  permanent   improve- 
ment to  the  freehold  so  as  to  remove  the  bar  of  the  statute  of  frauds. 
The  ver-  natm-e  of   the  good  ^411  is  sich  that  it  could  not  tsjII  be  con- 
sidered permanent.  ' 

Here,   respondents  entered  into  possession  under  the  valid,  une::pired 
lease,  having  eighteen  months  to  run.     Gha  expenditures,   except  those  for 
the  coal-burning  heaters,    v>ere  such  as   the    lessee  had  to  malce  under  the 
lease,   eizcept   that   interior  painT;ing  was  done   instead  of   tinting;   and  the 
coal  burners  were  voluntarilj''  installed  and  are  removable.     Hence,   such 
e:q?eadi tures  are  not  ci:ch  as  to  constitute  part  performance  and  create 
estoppel,   as  in  the  Ilatzger  case. 


/l.,.,^,.^^/--^  .^.^^  ^^;.^:^-^^^^ 


X^«--a<_ 


/^-^"--^ 


.^ 


/ 


240, 


From  the  foregoing,    it  rollov/s  tint  the  judgment  of  the  trial  court 
must  te,  atid  it   is,  reversed,  with  direction  to  eater  judgrtcnt  for  ap- 
pellants .                                       .  .^ 

Ilount,  Ilitchell,    Tolman,   and  llain,   JJ.,  concur. 


(    ^^<2'tu^^<^^^^::c^:ip-^      1    .^^^^^-'o. 


.iC^-.^^^^^^ 


(^y 


y 


---'=<»-^^^     -^      f     U ,f'-0<XJ>-\^^Z^ 


V 


^'^^t^^c^ 


_e;««i-t.-<-rf<2'i£i»,^ 


..:3^ 


^ 


-f 


-"^--^     -^^^ ,  /.-^<^  ,^    .^ 


I 


341, 


(SuproKB  CC'^jC^  0:?  Califor-aia.     Jan.  5,   1915.) 
{:/>9  Cal.  101) 

Departrmrt  1.     Appeal  from  Superior  court,  laags  Count;^'-;  Jdha  5. 
Covert,    JrtdjG. 

Action  "by  Ma.-:  Strauss  asalnst  D.  J.  Caaty.     Judsitent  fcr  plaintiff, 
and  from  t.Iie  .radjment,  and  an  order  danyins  a  motion  for  a  new  trial, 
defendant  appeals.     Jud^ineat  aiid  order  affirmed. 

Sl-cs^^,  J.     Tiie  defendant  appeals  from  a  jud3,r.ent   quieting  pl^in- 
tiffJ^:^_tiJ;Jji-tnzszii:^&rot  land  in  Zin^s  county^    He  also  appeals  from 
an  order  den;-!'!^,'^'  his  notion  for  a  new  trial. 

The  plaj.ntiff  clai>x£   as   successor  in  interest  of  Jj-ney  L.  V/eddle, 
to  v;how  the  Icna  v.as  s^-anted  "by  a  United  States  patent  on  Karch  7,   1892. 
lEho  ci.Gfer.dant  claiss  undor  a  ta::  deed,  and  also  relies  upon  a  title  ty 
preocripi/icn  and  tl\e  statute  of   limitations. 

(1,   P.]   ?he  plaintiff  showed  a  socd  derai^nment  of  title  from  'Teddle . 
TkB  record  Ci;,.:tainu   reference   to  a  deed  from  Lucinda  E.  ".."eddle   (wife  of 
Arney  L.  )   to  .Vri'ia  L.  V/eddlo.      The  deed  was  intended  to  convey  any  possi- 
ble incerest  of   the  wife  to   Gie  husband.     Waiving   the   question  of  the 
effect  cf  the  mistake  in  tlie  grantee's  name,   there   is  nothing  to  show 
that  the  vrf.fe  had  any  interest,  and,  so  far  as  the  proof  goes,  Arney  L. 
Y/eddle  was  the  ^ole  ovo^er  of  the  land.     Even  if  it  was  ccnimunity  prop-  . 

erty,  he  liid  the  right  to  convey  it  for  a  valuable  consideration.     E6~        *L^ 
dJ^  convey^il;  to  Feeder  it-.  It  in  1907  "by  a  deed  reciting  such  consideration.     ^ 
Thsreafler   the  plaintiff  obtained  a  money  judgjre'at  agairst  Fredericic, 
had  e.:eGu-:ion  ].f^vied,   and  purchased  the  property  at  the   er.&ciition  sale. 
The  shoriff'o  d.?.ed  wa^  e;tecuted  to  the  plaliotiff  en  Hec ember  12,   1909. 
The  evidf;-.\ce  offered  by  plaintiff  in  this  behailf  consisted  of  the  judg- 
ment a{^ainpt  Frodericlc,    the  e::ecution,  with  the  sheriff's   return  shov;- 
ing  the  sale,  and  the  affidavit  sliowing  due  publication  of  notice  of 
sale,   ard  the  sheriff's  deed  in  proper  form,     ([hose  papers  v.'ere  suffi- 
cient  to  show  the  acquisition  by  plaintiff  of  Frederic Ic's   title.     Blood 
V.  Light,   58  Gal.   549,    99  Am.  Dec.  441;  Hihn  v.  Pock,   30  Cal.   ?80;  Peter- 
son v.  \7eissbein,    7o  Cal.    174,    15  Pac.   769. 

The  judgment  and  the  order  deiiying  a  ne\;  t-rial  aro  affirmed. 
We  concur:     Angellotti,   C.  J.;  Shavv,  J.  w  o  y—    V\^ 


i 


242. 


(39  Atl,  Rep.    890, ) 
(Supreiie  Coxirt  of  Errors  of  Cormectiout. 
}kJ-?.a  5,    1£]4.) 
(b3  Ooan.  42) . 

Appeal  frori  Superior  Coiart,  I.Iiddlese:::  County;  v/iniam  H.  V/illiaras 

and  Uaxov.f-  H»  Holcorab,   JiCges. 

Action  tv  Eli.;?abefi  C.  Bro\n  a^^jaiust  Hhomas  S.  Bro\m.     From  a  ju^- 
xaent   for  da-C'3ada".i"b ,  plaintiff  appeals,.     Severaed  and  remanded  for  fur^ 
ther  proceed?.  103-0. 

Qiayer,   J.      "Zee  plaintiff  "b;;  tliis   action  seels   to  recover  damj<ses 
from  her  I^usTjavx'-  for  an  assault_and  Latter"  and  false   imprigojjBient.     'Zie 
parties  v/erc  iii^rried  in  Ccto"ber,   1877.     If  slie  has  a  cause  of  action 
against  her  husband,   it  is  not   questioned  *jh3.t  the  suit  is  well  "brou.~ht , 
Ex   complaint   is  derrrorred  to;    the  onlj?'  3'rouix'.  of  deriurrer  assigned  bein^- 
that,  "b?'  rea.son  oi  lier  cover  t^e'j^she  has  "ho  cause  of  action  against  Sim 
_^r  the  personal  injuries  alleged  in_the_ccnii3laiat .     The  superior  co-art 
sus tai ng^L-the  demurrer,  and  the  only  question  presented  by  tliis  appeal 
is  vhetlier  that  rxilin^;  \!3.s  correct. 

(1)  By  the  common  lav/  the  husband  m.i^-ht  restrain  the  v.lfe   of  her 
joberty  anerS5hTchas'^rrgB~ii5rT~~l~3Ia75rrtpae ,   Com.  444.      ''Elie  la^v  vSich 
attached  sixITTifbjftCoSon  to  the  lesJOr^statTrs  of  a  ma.rried  v/omaJi  has  "been 
abolished,  hut  rot  by  direct   legislation;    it  lias  disappeared  under  the 
continuous  pressure  of  judicial  interpretation  or  indirect  legislation." 
Ilathewson  v,  IIa.thev;son,   79  Conn.    25,    27,    63  Atl .   285,    267    (5  L.  P.=  A. 

(U.  £.)   611,    6  /inn.   Oas .   1027),      It  is  nov;  as  unlav.'ful  for  him  to  beat 
or  falsely  imprison  his  wife  as  for  another  to  do  so,  and  he  is   amenable 
to  the  criminal  lav:  for  svch  an  offense.      If  anather,  prior  to  the  recent 
statuces,   coni^itbed  these  offenses  against  her,   they  were  liable   in  an 
action  for  the  inju.ries   inflicted  upon  Ijer  by  such  torts,  "but    the  action 
had  to  be  brought  in  the  name   of  her  husband  and  herself  jointly;    the 
real  purpose   of  the  action  heing  t  0  reduce  the  chose  into  the  possession 
of  the  husband,      'Ihe  -r'ife  \i2.s  joined,  "because,   if  her  husband  should  die 
pending  the  stiit,  the   damages  would  survive  to  her.     1  Blaclctone,   Com. 
445;   1  Chitty  on  xleading,    73.      Tl:ie  common  law  regarded  husband  and  vrife 
as  but  one  person,  and  the  husband  v-as  that  person.     Being  but   one  per- 
son,   they  could  not  contract  with   or  sue   one  arother,      Tliis    resulted  log- 
ically from  the  legal  identit;.'-  of  hushand  and  wife.     If  this  -..-ere  the 
present  status    of  the  parties,   the  plaintiff  could  have  no  action  for 
the  recovery  of  damages  for  the  torts  alleged. 

(2)  Public  .^.cts  1877;   c.   114,  entitled  an  act   in  alteration  of   the 
act  concerning  domestic  relations,  but  commonly  call5c'-_the  IlarxlP.d  T7oman's 
Act,_established  a  new  lega.l^sjtatus  for  persons    thereafter  married. _   It 
"^olc  eii±ec^^l^£r%l~^2D^^-2.Q!/l ^   and  is  embodied  in  the  present  revision  01 
the  general  statutes.     Eie  pxirpose  aud  effect  of  the  act  were  in  question 
in  Ifethei/son  v.  liathev.'Eon,   supra.     In  the  opinion,  --ritten  bj'  Judge  Ham- 
mersley,  after  a  revie;/  of   tZs  previously  e::istiug  la\:  relating  to  the 


I 


243. 

statue  of  niari-iecl  persons,    it  in  held   tli3.t    'in  enacting  this   lav;  the 
state  auop'cod  a  fuudsT.ur.tal  chanGre  of  public  policy'-;   that  by  it  "thC3 
unity   in  the  hi-:3'bant',  o.C  his  w'-n  arji  his  wife's  lc..^,rl  identity  and  cap- 
acity to  own  properirj  r^as   •jre:;r.o;'-ni:.,  srd  s.  new  f o-jn-1atioa,   nai:3sly,   eq;:'.'u- 
ity  of  huc>'3j:c'.  a-iC  wi.f^  .i:i  legal  adontity  and  capacity  ox   a.mins  prop- 
erty, v.ns  laid";  and  taat  siuMf  fb3  act  took  effect  "husband  and  wife 
alite  reta3zi   lr:e  c-^jpaoity  of  cvpr.ng.  aoquirrag,  a^d  disposin:?  of  prop- 
erty, v/h;.ch   rje.Ionr:s   to  T:nv,arried  person'^."     lu  that  action  a  v/ife  hac". 
sued  her  hu?b^:o.d  for  ■bt'saoh  of  contract.*    E-^  act  provides  that  tl-js  '..If.; 
shall  h^A-e  T.-0'7or  to  nialce  contiac-cr.  -,.•;( th  third  pcrsonzi,   and  it  was  clar-n'- 
ed  that,   a^  it   in  terns  g.?,ve  hur^band  ai\d  wife  no  pov.-er  to  contract  mtU 
each  of:-ifr,    !:-;;c'i  r.c-.ver  t&  prohibited;  but   it  %.D.!i  held  that,   as   the  act' 
•'is   in  th::  rative  of  :a:ndei-.a:5tal  legislation,    it   involvei:  all  the  re- 
sults nece:;raj~:lly  xIomL^;  fro-D.  the  prfaciple  established;-'  that  the  con- 
seqiiencec  result lii{y  from  the  iae\/  status  established  by  the  act  '.;ere  not 
to  be  prohrbitsd  by  inference,   imless  Ei-.?,h  infere-ace  is  necessary;   anfl. 
that  the  r  ijjiit  of  iifasband  ard  v/ite  to  sue  ea^.h  other  for  breach  of  con- 
tract is  one  uf   'cIs  coaceqiiences   of  tlie  new  ftatuj;  established  by  the 
act. 

In  Ilarrie  v„  StErnford  Street  R-  H.   Co.,   64  Conn.   9,   23,   24,  78  Atl. 
582,  35  L.  ?..  A.    (H.r  . )   1042,   ."jm.   Cas .   L?\?:Z,   1120,   -.e  held   that,    as 
the  result  of  the  lesol  status  created  by  tlie  act  of  1877,    the  wife  may 
nov;,  by  an  action  in  liev  o\;n  name,  recover  for  physical   inj-uries  tor- 
tiously  inflicted  upon  her  as  fully  and  to  the  sane  e::tent  as  a  husband 
may  vhen  he  is  the  person  injured,  and  tliat  the  wife's  right  of  recover;^'' 
for  her  injuries   is  e::clusive.     In  that  case  a  husband  had  been  allowed 
to  recover,   amons  other  thins'S,    for  the   loss   of  his  wife's  services 
caused  by  her  injuries,  and  so  much  of  ths   judgKent  as  allov;ad  him  dam- 
ages for   the   loss  from  such  injuries  v;as  set  aside. 

By  these   tv.'O  cases   it  is   established  that  a  vafe,  married  since 
April  20,   18-77,  may  contract  -Tith  her  husband  or  other  person  ard  nay  in 
her  (3wn  nane  sue  her  hutband  or  sixh  other  person  for  breach  of  such  con- 
tract;  also  that  she  has  a  cause  of   action  upon  which  she  maj*  recover  in 
a  suit  Ku-3';g.h.t   in  her    ^wn  name  f  jr  perscnal  injuries  T.Tongfully  inflict- 
ed upon  her  by  others  than  h^r  husband.     If  a  cause   of  action  in  her 
favor  arises  from  the  '.wrongful  infliction  of  such  injuries  upon  her  by 
another,   v.hy  does  not   tl-£  v-rongful  rofliction  of  s'Xh  injiaries  by  her 
husband  nov/  give  h^ar  a  cause  of  action  against  him?     If  she  may  sue  him 
for  a  broken  promise,  v/hy  may  ste  not  sue  him  for  a  brolten  arm?     Hae  de- 
fendant's answer  is    &x.l  a  wi^e  public  policy  forbids  it;    that  no  right 
of  action  accrued  to  her  from  such  a  tort  prior  to  the  statute  of  1-377; 
that  none  is   e;:pressly  given  her  by  that  statute,  ard  that  none  can  be 
implied;   and  that  this    is  tlie  holding-  of  courts   in  otfier  jurisdictions 
in  cases  Ahich  liave  arisen  under  similar  statutes. 

It  is   triB   that  courts   in  some   of  the  states  ha,ve  held  tlaat  stat- 
utes more  or   less  similar  to  the  one  here  in  question  give  a  married 
woman  no  right   of  action  against  her  husband  for  a  tort.     They  fxuL  in 
the   statutes  construed  no  legislative  intent  to  change  tie   legal  status 
of  husband  ard  wife  as  regards   the    legal  identity   of  the   two,  but  sl-nply 
an  intent   to  ameliorate  the  condition  of  the  wife  by  permitting  her  to 
retain  and  deal  with  her  o\n  property  and  to  contract  v.'ith  and  sua  and 


244. 

"be  sued  ty  others  than  her  husliaxid.      These  courts  generaJ-ly  hold   that., 
unless  there   is  ?ii  e;ri?ress  provision  ^-ivinr;  her  tie  ri^ilat   to  sue  her 
hucbaaid,   she  ]Tas  no  ar-tion  af;a'.nst  hin  upon  contract  or  for  tort.     It 
is  vumoces^sary  to  review  the   ii^dividual  cases.     As  v;e  said  in  Ilathev/son 
V.  IIathe^7^son,   supra.  x\n.eve  an  act  vMch  loaves   tiie  foundation  of  the 
rnarriage  status  unchanged,   and  rrerely  iDrovides  exceptions   to  tl:e  neces- 
sary consoquencss  of  t'Jxit  status,  srch  e::ceptions  ma--  properly  ■be'llimii- 
ed  fey  the  ne.ce.irjary   impcVL-t  oi   the    la'a2,iJaSe  dcscriting  them.      If   the 
legislative  iL-.itvnt  in  sroh  an  enactraent   is  not  to  Ghani-;e  the  foimdatior. 
upon  vdiich  tlie  statns  Oj-;  msrr.i3d  porcons  was  "based  at  common  lav/;   najXieXy . 
their   le^al  l'lcx.t-'.-cj  ,  ■[-.ut  its  purpose  is   to  enpov;er  the  v;ife,  \/hile  thr.,t 
status  e;:ists,  to  contract  and  sue   in  her  o\vn  name  lii:e  a  feme  sole,   it 
mi^"ht   -ell  ■hf.  held  that  lan^vaje  'bestcriviu/j  this  ri^iit  could  not  "be  so 
e:ctonded  as   to  perxni  b  her  to  contract  v/irh  her  lousoand  or  to  sue  him  for 
a  tort,  TDOcrr.r.e  the  statu.te  intends  that  her   identity  slnall  still  Tae 
mer^-ed  j.n  tliat  of  her  h-js'band.      In  the   t*.7o  cases  atove  cited  v;e  have  al- 
ready held  tlvxt   the   losj.3lat3.-/e  intent  in  the  act  of  1877  was  to  change 
th2  foundation  of  -f-he   iesal  statiis   of  husl-and  and  vafe,   and  that  the 
statute  effeolB   that  clian^^e.     In  marriases  •.hich  have  occurred  since   the 
act  took  effect,   the  pai'ties  retain  t/ieir  lesal  identitj^   and  their  civil' 
rights  are  tc  be  dete?rrr,iued  in  accordance  -ath  the  status  thus  establish- 
ed.     Eiese  ri:;yri:E,    except   so  far  as  they  are  modified  by  the  statute   it- 
self or  by  other  statutes,   or  are  necessarily  affected  by  the  reciprocal 
rights  and  oLllgaticn.^  v,hich  are  irJierent   in  the  relation  of  husband  ani?. 
wife,  are  the   Lsas  az   they  \;ere  bsicrre  marriage .,      Tlie  statute  leaves 
nothing  to  ir.ipi;.cat,ion,      The  ri^it   to  contract  -./ith  the  husband  ond  to 
sue  him  for  breacli  of  ccaitract  and   to  sue  for  torts   is  not  given  to  the 
T/ife  by  the  statute.      Triere  are  rights  v/hl.-ih  belonged  to  her  before  mar- 
riage;  and,  because  of   the  rev;  marriage  stati-£  created  by  the  statute, 
are  not   lost  by  the   fact  of  marriage  as  tlsy  were  under  the  common- la"..' 
status.      The  statts    of  the  parties  after  mairisge  being  fi::ed,    there  '„^e 
no  occasion  fcr  providinr,'   in  e::preE3  terias  v.-iiat  the  consequences  wou.ld 
be.     They  follov/ed  logically. 

In  the  riathe./soa  Case  v/e  held  that  -&  \dfe's  right   to  contract  with 
the  husband  aiii  to  sue  him  for  breach  of  scch  contract  followed  neces- 
sarily from  the  fact  established  by  the   stature,    that  her  legal   identit^- 
v/as  not  lost  b"'-  her  coverture.     It   is  an  equallj'^  necessarj;  consequence 
of  her  retention  of  her  legal   identity  after  coverture  that  she  has  a 
right  of  action  against  her  husband  for  a  tort  conKitted  by  him  against 
her  and  resultiig   in  her  inju.ry.     Srch  a  tort  gives  rice  to  a  claim  for 
damages.     Euch  claiin  is  property-  not  in  her  possession  but  vhich  she  may 
by  action  reduce  into  h^r  possession,    just  as  sI-e  might  before  her  co- 
verture have  had  an  action  against  him  for  such  a  tort  committed  before 
that  event.      The  husband's  delict,  whether  a  breach  of  contract  or  person- 
al injury,   gives  her  a  cause  of  action.     Both  necessarily  follow  from 
the   fact  that  a  married  woman  nov;  retains  her  legal   identity-  and  all  her 
propertjy-,  both  that  which  she  possessed  at  the   tine    of  marriage  and  th-.t 
acquired  afterv;ardE. 

(5)   In  the  fact   that   the  wife  has  a  cause  of  action  against  l"£r  hus- 
band for  •.tt'orjgful   injuries   to  her  person  or  propert;/'  committed  by  him, 
we  see  nothing  which  is  injurious  to  the  public    or  against  the  public 
good  or  against  good  morals.      Tliis   ic   the  usual  test  for  determining 


..^^^c^-'Cc.^^ 


/      o     ^^'C^ 


^^^yC^,^<z^^^^^  ,-X^^^  J 


^^   _,--;^    w-X^     ^-'•'^  ,,.-^-«,*,**-t-ff^     ,,5<^ 


I 


245. 

whether  a  statute  or  a  contract   is   against  public  policy.     V/hen  a  \7ife  is 
allowed  to  x^ossoss  and  deal  with  her  own  property  and  carry  on  "business 
in  her  o\m  ncme  like  a  feme  sole,  she  ought  to  have  the  sane  ri^t   to  c^': 
tract  and  enTorce  her  contracts,  and  the  came  remedies  for  injuries  to  Wi. 
person  and  property  whicn  others  have,  and  to  "be  liable  upon  her  contr.'.-  . 
and  for  her  torts   the  saiae   as  others  are.     This  is   the  position  in  viiaica 
she  now  stands,     rne  drJiorGr   that   the  domestic  tranquillity  may  be  dist"r 
ed  if  husband  aid  "ife  hove  rishts  of  action  against  each  other  for   tort 
and  that   tlie  courts  '.111  be  filed  vath  actions  brought  by  them  against 
each  other  for  assault,   slander,   ard  libel,  as  suggested  in  .some  of  the 
cases  cited  in  behalf  of  the  defendant,  we  thinlc  is  not   serious.     So  Ion; 
as  there  reraoins    to  the  parties  domestic  tranquillity,  while  a  remnant  ic-: 
left  of  that  affection  aid  rospect  v,dthout  \hich  there  cannot  have  been  z 
true  marria?;o,   etch  actions  v/ill  be  impossible.     Y/hen  the  purposes  of  tl:c 
marriage  relation  have  vholly  failed  by  reason  of  the  misconduct  of  one  ov 
both  of   the  parties,   there  is   no  reason  vhy  the  husband  or  wife  should  not 
have  the   same  remedies  for  injuries  inflicted  by  the  other  spouse  vhich 
the   courts  v-ould  give  them  against   other  persons.     Courts  are  established 
and  maintained  to  enforce  remedies  for  every  v/rong  upon  the  theory  that 
it  is  for  the  public  interest  that  personal  differences  should  thus  be  ad- 
justed rather  than. the  parties  should  be  left  to   settle  them  according  to 
the  lai.'  of  nature.     No  greater  public  inconvenience  and  scandal  zsn.  thus 
arise  than  -.-Duld  arise  if  they  were  left  to   ans\.-er  one  assault  with  anothe; 
and  one  slander  v.lth  another   slander  until  the  public  peace   is  broken  and 
tlie  cri^ina:^.  l3.\i  involzed  against  them.     '7e  find  nothing  to  warrant  the 
claim  that  public  poliP3r  is  opposed  to   the  existence   of  a  cause  of  action 
:^Dr  a  personal    tort  in  favor  of  husband  and  ^7ife  against   tha  other  spouse, 
where  the  vdfSs   identity  is  not  merged  in  that  of  her  husband.     The  plain- 
tiff aM  defendant  having  married  subsequent  to  /ipril  20,    1877,  the  facts 
alleged  in  the  complaint  were  not   insvi'ficient  by  reason  of  her  coverture, 
and  the   demurrer  should  have  been  overruled. 

There  is   error,    the  judgirent   is  set  aside  and  the  case  remanded  for 
further  proceedings  according  to   law.     All  concur.  _ 


246. 


■JAEOIT  et  al.  v.  KAKRIS. 

(60   To::.   Cv.  A.    263) 

(Court  oi"  Civil  ;.i)peals  of  lends 

Jlr.v  25,  191Q. ) 
(130  S/t;.    *2o7.) 

Appeal  from  District  Court,   Lcnpasas   Counter;   Jolin  D.  Kobinson, 
Judse . 

Irecpacs  to  tr;*  title  "by  Sallie  T/atson  and  others  a;:;ainct  L!.    C. 
Harris,   alias  II-  C.  V/atcor..     From  a  judgment  for  defendant,  plaintiffs 
appeal.     Revere ed  and  remanded. 

Key,  C.  J.    Appellants'  Tjrief  contains  a  substantially  correct 
stateicent  of  t'a'i  nacure  axd  result  of  this  suit,   as  follor.7s: 

"Ilrs.  Eailie  V/atson,  wife  of  S,  R.  Uatson,  deceased,  and  II.  A.  T7at- 
Eon,  Jim  S.   .^atson,  Dora  V/atson  IlcIIillan,   joined  "by  her  husband,   John  I. 
llcllillan,    CleBFiie  \/atcon '--tephens,   joined  by  ho r  husband,   Charlie  Steph- 
enc,   aad  Abe  7/atson,   children  of  Sallie  V/atson,  plaintiff,   and  of  S.  R. 
V/atson,   deceaijed,  filed  this   suit   in  the  district  court  of  Lai:ipasas 
county,   Texv,  on  I  larch  15,   1909,  against  II.  C.  Harris,   alias  II.  C.  Wat- 
son,   in  the  fcrm  of  trespass  to  try  title.     Plaintiffs  allowed  that  S. 
R.  V/atson  died  in  the  state  of  Georgia  on  April  6,  1908,   intestate;   that 
at  the   time   of  his  death  plaintiff  Sallie  V/atson  •-•as  his  lav.'ful  v;ife, 
she  iiaving  been  icarried  to  S .  R.  TTatson  since  about  th&  year  1868,   and 
never  having  been  divorced  from  him;    that  the   other  plaintiffs,  viz.: 
H.  A.  Watson,  Jim  S.  Vfetson,  Dora  V/atscn  I'.crJ.llan,  Clemmie  V/atson  Steph- 
ens,  and  Abe  Y'at-son  were  the  children  of   said  Sallie  V/atson  and  S.  R. 
"Watson,  deceased,  born  in  lav/ful  \.-edloolc.     Plaintiff  alleged  that  at  the 
date  of  his   death  S.     R.  V/atson  \^z  the  o'-ner  of  three  certain  tracts  of 
land  situated  in  Lampasas  co-onty,   Te::.,   ar.d  also  of  certain  personal 
property  described  in  said  petition;    that  on  the  6th  day  of  April,   1908, 
the  date  of  the  death  of  S .  R.  Watson,  plaintiffs  \.'ere  the  ovrners  and 
entitled  to  the  possession  of  all  of  said  real  aixL  personal  property, 
aud  that  on  said   date  the  defendant  entered  on  said  premises  and  ejected 
plaintiffs  therefrom  and  since  said  date  has  unla^/fully  withheld  from 
plaintiffs  the  possession  Giereof,   to   t?£ir  damage  in  the   sum  of  08,000. 

"amplifying  the  loregoing  allegations  plaintiffs  alleged  that  prior 
to  the  year  1882,   the  defendant  II.  C.  Harris.,  alias  II.  C.  Watson,   lived 
in  the  state  of  Georgia  in  the  same  community  \ath  tlie  deceased,  S.  R. 
V/atson,   and  \'Tith  these  plaintiffs;   that   the  said  11.   C.  Harris  \7hile- in 
Georgia  knew  the  deceased  and  the  plaintiff  Sallie  -'/atson  vv-ere  legally 
married;   tliat  in  the  year  1882  deceased  S.  R.  V/atson  left  tbe  state  of 
Georgia  and  camo  to  the  state  of   Texas,   settling  in  Falls  county;   that 
defendant  II.   C.  Harris   left  the   state  of   Georgia  at  about  the   same  time, 
came  to  Falls  count;-  and   thereafter  lived  vath  S.  R    'Vatson  in  Falls  and 
Lampasas  counties,  claiming  to  be  hie  wife  ard  going  ixnder  the  name  of 
II.  C. V/atson;   that  during  all  of  this   time   she  actually  loiev/  that  S-  R. 
V.'atson  was  legally  carried  to  plaintiff  Sallie  V/atson;   that  plaintiff 
Sallie  V/atson  \iQS  still  living,  and  that  Sallie  "Vatson  and  S.  R.  V/atson 


23:7. 

had  never  been  divorced;   that  the  defendant  M.   C.  Harris,   alias  11.   G. 
■\7atson,   continued  to   live  with  S.  R.  V/atson,   claiming  to  be  his  v;ife 
until   tlie  date  of  hie    death  on  .'ipril  6,   1906.      It  v/as  fiirther  alleged 
that  viien  £.  .d.  "'atcon  left  Georgia  he  had  about  C-SOO  in  money  and  tliat 
the  defendant  had  nothing;   that  after  defendant  and  S.  R.  V/atcon  had 
lired  to^jcther  in  Tcncac  from  about   1882  until  1693,   Si  R. V/atson  bought  a 
farm  in  Falls  county  for  which  he  paid  OSOO  cash  and  e::ecuted  his   tlxree 
notes  for  (.'2,000,    the  deed  boiag  taken  in  the  name   of  £.  R.  \ratson,   and 
the  consideration  paid  by  him,   and  the  release,  upon  the  "pa-TOent  of  the 
notes,  beins  made   to  hiru;    that  thereafter  on  Hovember  30,  1896,   S.  R. 
Watson  and  defendant,   signing  under  the  name  of  H.  C.  "/atson,   sold  the 
Falls  county  farm  for  C.'3,750,   the  purchase  price  being  evidenced  by  ven- 
dor's lien  notes,   vhich  --Bre  afterv/ards  paid;   tliat  upon  the  sale  of  this 
Falls  county  property  S.  R.  V/atcon  and  defendant  immediately  moved  to 
Lampasas  county,   and  continued   to  live  together  as  husband  and  \/ife;    that 
on  December  1,    1897,    they  purchased  for    the  sum  of  OS.OOO,  OSOO  of  which 
was  paid   in  cash,   the  tract  of  170  acres  of  land  first  described  in  the 
petition,   the  balance  of  the  purchase  money  being  secured  by  the  vendor's 
lien  notes  of  the  '/atGons,  payable  in  1898,   1899,    1900  and  1901,   and  the 
deed  being  talcen  in  the  name  of  II.   C.  V/atson;   that  in  1904  E.  R.  ''"atson 
'imrchased  the   ::-ccond  tract  of  170  acres  described  in  the  petition,  paying 
tlierefor  $700  in  cash  ajid  asstiming  pajonent  of  vendor's  lien  notes-  on  the 
land,  which  notes  ho  subsequently  paid   off;   that   the  deed  to   this  tract 
\is.s  also  taken  in  the  nams   of  U.  C.  V/atson;   that  on  September  10,   1907, 
S.  R.  V/atson  purchased  the  third  tract,   containing  160  acres  of  lani'.  de- 
scribed in  the  petition,   payiiag  therefor  v?840  in  cash  and  e:cecuting  his 
notes  for  tho  balance,   the  deed  to   this    tract  being  ta:22n  in  the  naiae  of 
S.  R.  V/atson. 

"Plaintiffs  further  alleged  that  vhile   the  deeds  to  the    first  tvra 
tracts  of  land  v.'ere  taken  in  the  narce   of  li.   C.  V/atson,  defendant,    that 
the  purchase  money  for  each  was  the  proceeds  of  the   sale  of   the  Falls 
county  farm,    and  the  earnings  of  i>.  B.   l/atson;   that  at  the  time  the  deed 
to  the  first  tract  was  made  S.  R.  V/atson,'  deceased,  was  about  60  j^ears 
of  age,   was  a  very  illiterate  man,  v;as  mentally  ■\-;eak  and  v-us  wholly  tinder 
the  influence  and  control  of  defendant,  v;ho  v.a,E  a  datcrraincd  and  strong- 
mind -.d  \raman;   tl-iat  defendant  pHTsuaded  and  induced  £.  R.  V/atcon  to  have 
the  deeds   to  the  two  tracts  of   land  made  to  her  with   the   intention  and 
design  of  improperly  obtaining  from  £.  R.  V/atson  a  portion  of  his  prop- 
ert^--  and   of  defrauding  his   legal  wife,   plaintiff  Gallic  "/atson,   and  his 
legal  heirs  out   of  said  property.     Plaintiffs  alleged  that  the  facts  set 
forth  created  a  resulting  trust   inuring   to  their  benefit;   tliat  defendant 
held  all  of  the  property  aforesaid  in  trust  for  them,   as  surviving  v;ife 
and  heirs  of  £.  R.  V/atson.      Hio  petition  also  contained  appropriate  alle- 
gations  showing   that  defendant  had  disposed  of  certain  of  the  personal 
property,   vdth  a  prayer  for  jud^-ment  against  her  for   its  value;   also  with 
allegation  of  value  of  rents  and  revenue,  and  prayer  for  damages.     Pls-in- 
tiff  prayed  judgment  for  the   restitution  and  possession  of  the   land.E  de- 
scribed and  of   tho  personal  property,,   for  costs,   etc. 

"By  her  first  amended  answer,  filed  .'^pril  14,   1909,  defendant  plead 
general  demiirrer,  general  denial,  plea  of  not  guilty  and  specially  plead 
three,    five  and  ten  years'    statutes  of   limitation;  prayed  that  the  dtoud 
cast  upon  her   titles  because  of  plaintiffs'   claims  be  removed,  and  else 


248. 

plojfd  ttiG  four  vearc'   cta.utG  of  Ximtationr. ,  referrii:^-  to  cause  of  s.c- 
tici:.  other  cLaii' tIaoGe  for  tb.o.   reccver-j.  o£  "-eai-ty.     On  a  trial  befcve  the 
court  vltLovit   a  iury,   .ii^l;^rr.'r.jii;  :vas  i-Fi-idored  for  def.nidaiii-  for  all  of  i-ho 
laixl   aid  perrioiuil  prorpercj'-  oncic-.   for,   .?:acl.  cf-netirje;  Ij&r   in  lior   titlo   tliere- 
to.     To  the  Jui^nriQt  of   Kino  court  tie  plaLatiffs  e:xG-pted.,  and  in  opaa 
coiirt  save  notilco  of  avp3<'>l   -'    ■-^''■^-  court,     aaaercafter  on  Hay  18,   iS09, 
plaintiffE  filed  a-.i  appeal  iDO-.-r'.  horein." 

At  ti'e  reqx-.stji-   of  fcJao  plaintiffs  fae  court  filed  laerein  his  f iud- 
ings  of  fant  pijd  ccricluftioiis   of  hyrr,   an  fclloT/s: 

"FindiiTgs.  of  Pact. 

"(1)   I  rx:r.   olnat   ths  plaintiffs  reside  in  the  state  of   Geor^'ia,   ai/. 
that  the  pld.i>i.;.ifx  Tiallie  'v/atson  is  the   le^al  survivii^c.'  wife  of  E.  R. 
V/atson,   deo<--a?.3d,  y.ho  died  April  6,   190^;   tliat  5al]ie  Viatson  anl  S.  R, 
T/atEon  ware  Id'ViulIy  luarriod   lu  Ilarioij.  counter;    Ga. ,   in  the  year  1856 , 
and  the  other  ."■c.r'^.ies  plaintiff  are  the   lav/ful  children  of  t.  R.  V/atson 
and  Sal  lie  'Vat  con. 

■•"(2)   I  find  that  S.  R.  './at son  left  hlr  v/ife  and  faiaily  in  the  state 
of  Georgia  acout   the  year  1882  or  1663,    leaving  thera  tlie  home  and  prop- 
erty,  and  removed  to  Palls  cotiuty,    Te::,,  l)rin:.;in:^'  soite  mear.s,   "but  I  can't 
say  hov/ much,    ^no.  lived  -./ith  the  defendant  I!.   G.  Eai'ric  as  hie  ^/ife  until 
shortly  liefer e  his  death  in  1908. 

"(3)    I  find  tliat  Co  ?..  i'/atson  vjas  never  divorced  from  Sallie  ITatson, 
and  v/as  legally  married  to  h-er  at  the   time  of  his   death. 

"('i)    I  find  that  LI.   C.  Harris,   the  defendant,   lived  in  the  state  of 
Georgia,   an?,   in  the    same  comraunit;;,'   in  v;hich  S.  2..  './atson  and  his   family 
lived,  and   left  the  ctate  of   Georgia  at  about  the  srme  time  that  £.  E. 
Y/atson  left;   and  v,hat   she   laaewCaJlie  V/atson,   the  v/ife  of  t.  R.  Y/atson, 
and  laxcvf  that  Lai  lie  "Watson  \;as  alix'c  and  had  never  "been  divorced  from 
£.  R.  Y/atson.      That  defendant  \<as  never  married,   "but  had  three  children 
v/lien  she   left   Geoi-gia;   also  some  means,   "but  hov  mv.ch  I  cannot  say. 

"(3)   I  fird   fJciit  in  1892  S.  R.  Y/atson  and.  the  defendant  purchased 
110  acres   of   land    in  Palls  count:,r,    Te::.,    for  vhich  they  paid  (>2,555, 
05OO  of  vhich  -..as  cash,  :.'?[500  of  v/hich  v.Tis  claimed  "by  the  defendant  as 
her  sepai-ate  property  and  ^200  as  that  of  her   son.  "  Ohe  remaining  $2,055 
v/as  evidenced  'b-r  the  joint  notes  of  £. .  R.  Y/atson  aiad  the  defendant  and 
vrere  paid   oy  them  "by  moue;-  earned  by  t::eir   joint    la"bor  ancY  joint  efforts 
on  the  farm. 

"(6)    I  find  that  on  novemher  SO,    1896,   S.  R,  Y/atson  and  the  defend- 
ant sold    the  110-acre  farm  in  Falls  coiinty  for  the  sum  of  ^3,750.      7he 
defendaut  claimed  the  proceeds  of  this   sale  as  her  Property,   the   sail 
S.  R.   Watson  stating  th2.t  it  rac  hero,    and  she  deposited  this  money  -.vith 
one  J.  L.   Littoral,   and  aftervards  loaned  the  money  to  J.   L.  Litteral 
and  took  his   note   therefor   in  his  name. 

"(7)    I  find  that  on  Decen"ber  1,    1897,   the  defeiy?.ant  purchased  a 
tract  Of   170  acres  of  land  in  Lampasas  county,    Te::.,   talcing  the  title   in 


I 


249. 

thG  ncme   of  II.   C.  '.VatEon,   and  paid  tlierefor  $800  ca£lx  and  four  notes  oi 
'^.300  each,  wliich  -..■fere  given  and  paid. 

"(8)   I  find  that  on  the  ir.th  day  of   Ccto'oer,    1904,    tlie  defendant 
pxn-chased  a  ser.orxL  tract  of  170  acr?.c  of   l-a)rl   in  Laiipasao  comty,   talcing 
the   title   in  the  r-ii-no  of  11.   C.  V.'o,tc;o.a,  payi^s  v700  ur.sh  and  ascuning  thii 
paj-ment  of  (^00,  xihidh.  -.ras  paid.     These  two  170-acre  tracts  of  land  viQre 
paid  for  cut  of   Cie  funds  sheared  from  the  sal  e  of   fiie  Falls  county 
ti'ECt,   and   frora  thf^ir  further  joint   labors  in  Lampasas  county,  "but   in 
Tsiiat  propor(:ion  1  can't  fay. 

'•(9]   ;i"  fi.iai  that   on  Ceptemher  10,   1907,  I.  K.  V.'atson  and  the  de- 
fendant purchased  a  third  tract  of  laad   in  Laiapasas  count-y,    talcini'  the 
title  oin  the  n^-ne  oi'  ?.  E.  V/atson  and  ::.  C.  V/atson,  payrjg  therefor 
§1,500,  i;;840  of  vhich  \:at  cash,  an.d  assunins  the  pa:,Tnent  of   two  notes  of 
(iSOO  ea^Ji,  v.-hieh  %vere  not  fully  paid  at  the  date  of  the   death  of  £.  R. 
wavson.     At  the  date  of  the  last  purchase,  L.  R.  Watson  stated  that  all 
tie  property  -.c^  tho  defendant's. 

"(10)   I  flrid  that  S.  H.  V.'atson  and  the  defendant   lived  tosether  as 
man  and  wife  dm  ii'g  iha  years  of  their  resideaoe   in  Falls  and  Laripasas 
counties,    and  hoth  v.r.rlEd   in  the  acqr.isiticn  of  the  property  in  their 
possession  at  the   death  of  S.  E.  V/atso.u. 

'''(11)   I  iind  tli^t  L.  R.  V/atson  left   Ter..is  in  the   spring  of  1906  to 
to   to   Georsia  on  a  visit,   axiC.  -while  there  died  on  the  6th  day  of  /ipril, 
aad  that  after  hit  death  an  attempt  v/as  mi_de  hy  certain  of  Me  relatives 
to  pEOhate  in  the   courts  of  C-eorgia  a  nuuoiyoative  -.all,  alleged  to  have 
been  made  by  S.  2..  V/atson,  but   its  probate  was  denied,    and  what  property 
he  attempted  to  convey-  b-"  this  nuncupative  will   I  cannot  say. 

"(12)    I  find  tha.t  at  the  death  of  S.  P.   V'atson  on  April  6,   1908, 
that  the  personal  property  in  the  possession  of  Z,  R.  V'atson  and  the  de- 
fendant amounted  in  value  to  about  v800,   and  that  a  reasonable-  value  of 
all  the  lards  \,o.s  •)5,000. 

"(13)   I  cannot   say  «hat  props rtjT  or  nesns  £,  R    ■'.^tson  or  the  de- 
fendant had  or  OwHsd  as  their  property  at   the   time  they  came   to  Texas, 
nor  can  I  say  in  ihat  proportion  their   joint  efforts  have  contributed 
to  tho  accumulation  of  the  property  in  their  possession  at   the  date  of 
the  death  of  £.  R.  V/atson. 

''Conclusions  of  Lav;. 

ii'(l|  Plaintiffs  having  specially  plead  tlaeir  title  claiming  as  heirs 
of  £ .  R.  V/atson;  deceased,    they  must  be  restricted  to   this   title. 

"(2)  Plaintiff  Sallie  V/atson  not  claiming  title  by  virtue  of  axuj 
community  rights  but  claiming  as  heir  of  V,  R,    './atson,    is,    therefore, 
precluded  from  recovering  herein  as  to  her  communit;-  rights  in  property 
that  might  have  been  ovnied  by  J'.  R    '/atson  at  his  death,   and  could  only 
recover  herein  a  right  to  one-third  for  life  of  his  realty  and  one-third 
absolutely  of  all  personal  property  in  fact  oxKieC  by  £.  R.  '.Vatson  at  his 
death. 


^ 


250. 

"(3)     The  court  f^x-'ther  concludes   that  if  the  plaintiff  bailie  "^a±- 
son  could,  unier  her  petition,   recove-  as   to  a  comauuity  interest  or 
ri^-ht     tiiat  the   same  would  as   to  the   two  trcicts  of  170  acres  each,  convey- 
ed'^to'll.  C.  -.Vatson,.  he  l)arred  iron  recover^'  lay  tloe  four  years'   statute  of 
limitation  interiposed  ty  defendant. 

"(4:)     The  court  concludes  that  no  recultin^-  trust  is   shovaa  in  favor 
of  plaintiffs  to   the   t\/o   tracts  of  170  acres  each,   it  not  being   shovm  t:?.-.t 
such  v/as  intended  -fay  the  parties  at   tte   time   the   title  to  said  f-;o  tracts 
of  land  was  made  to  IT.  C,  V.'alson. 

•■'(5)     iTrje  court   fratijher  concludes   tliat  plaintiffs  have  failed  to  es- 
tablish their  ri^ht  to    recover  any  part  of  the  interest  of  t.  E..  V/atcon 
in  tl-£  leo-aore  tract  of  land  conveyed  to  t.  P..  V/atson  and  LI.  C.  ■7atson 
by  their  failure  to  establish  their   title  by  evidence  froa  either  I'ae 
sovereignty  of  the  soil  or  fro/.ic  oraaon  source. 

"(6)     The  court  further  concludes  thrt  plaintiffs  cannot  recover  as  to 
ofi-y  personal  or  separate  property  of  S.  P..   ■.'.'atson,   it  not  being  sho  ai  that 
he  actually  owned  any  at  tLe  d=te  of  his  death." 

Appellants*   first  and  second  assigrments  of   ei-ror  complain  of  the 
trial  court's  first  and  second  conclusions  of  lav,    the   contentioii  being 
tiiat  the  plaintiffs'  petition  -was   tufficient   to   entitle   the  plaintiff 
Sallie  ^"atson  to  recover  upon  th^  theory  th^-.t   tiE  property,   or  a  portion 
Ox  it,  v/as  the  ccxiuaity  estate  0:6  nerself  and  her  deceased  husb.nd.     V/e 
sustain  that  contention  end  li©ld  tli?.t   the  court  belov;  erred  in  the  rulings 
referred  to.      it   is  true,   as  pointed  out  i'^  appellee's  brief,   that   tl'B 
petition  did  not,    in  specific  terms,  allege  tht-t    the  defend mt  held  the 
property  sued  for  in  trast  for    Sie  plaintiffs  as   surviving  wife  £iid  heirs 
of  E .  R.  V/atsou,   nor  did  it  allege  that  Eallie  V/atson  sued  in  her  ri:J^t 
as  surviver  ot"  l^ic   ooraTjnity,  a  nd  it  alleged  "/itiat  £.  R.  V/atson  -'as   the  ov/n- 
er  of  the  property  sued  fOi    at   Qie   tiixe   of  his  death  ,  aixL  that  the  plain- 
tiffs v/ere  entitled  to    it   as  his   legal  heirs.     It  did  nllege  thrt   the 
plaintiff  Lallie  Vatson  was  the  lawful  \/ifo  of  £.  ?<..  '/atson  long  prior  to 
and  at  t  he  time  he  accyaired    tlie  propertj^,    aid  did  allege  tliat    the  defend- 
and  was  holding  it   in  trust,    aiid    the  uecessarj-  implication  would  be  tliat 
the  plaintiffs  '.vere   the  beneficiari  es  in  the    trust  referred  to.     Even  as 
against  a  generjl  der.iurrer,    the  rule  is  th^  t  a  pleadLig   is   not  to  be   strict- 
ly construed,   and  it  is   to  be  aided  by  all  reai-onable  inferences  3.nd  in- 
teiKVnsnts.     That  being  fsB    rale    in  considering  a  general  demurrer  to  the 
petition,   uost   a^curedl3'-  the  same,   if  not   a  more  libe^j.l  rule,    should  be 
applied  when     that  plea^.ing  i  s  c  onsidei'ed  for   the  purpose  of  rendering- 
judgment.     Hence  we  hold  that  the  petition  in  this  case  entitled  tha 
plaintiff  Sallie  "Vatson  to   v;hatever   ri>Lts   inured  to  her  by  reason  of  the 
fact  that  she  was   the  -.Ife  of  I.  R.  V'atson,  as  disclosed  by  the  testimony 
and  t  he  findings  of  fact. 

Th^  third  assigument  assails  tlje    trial  court's   third  conclusion  of 
law,   to  the  effect   that  as   to  and   t^;o  170-acre  tracts  of   land,  Ilrs.   Sallie 
'ctson's  ri'Jit   co  recover  her  c onrauni tjr  interest  \/as  bai-red  by  the  four 
yerrs'   statute  of  limitation.     In  its   essential  features,   the  suit  was  an 
action  in  trespass   to  try  title,  and  not   .n  equitable   .rction  to  cancel 


I 


251- 

c'.eec'-s,  end   tQieraforo  the  lOin-   -jziZ-S'    Gti.fcte  oi   limitation  had  no  appli- 
cation, and  th 3  court  St-r'^d  in  ruling  otl:er-Tire.     Lttifford  v.  Ltaffa-cL,, 
96  Te::.   lOG,   70  f.,  V/.   75;  Lell  '"iju^ly  v.  -^cl\.t ,    120  ^j,  ^>".  10?5,   1072. 

Hie  fouxS:  aJ  sl.^um'sv..b  is   alfSrecsGd  to  tlie  trial  court's  fourth,  ccn-- 
clusion  of   lav/,  hoUJ^j  thr.t  jio  ~ss;:ltiy,;'  trust  \;-s,e  sriov.'n  in  favor  of 
the  plaintiffs   to  t-e  two  l?0-eare  tra^^.ts  f:f   3.rnd.     "Hie  court  fount",  an  a 
iact'chat  3.  S.  'Vatscn  titid   che  (=•  t^fe-LiCJ.pjjt  pxrcd'asel  5,  tract  of  Irrnd  in 
Pall-:   ooiiiTty  Iri  TiBS?.  f:)r  a  conPiafrali'JBGt  f?';i,5'3C5'   Ibat  O'^,0r;6  therecf 
\7a3  i^ai'l  in  mone--  e.-7,r-aori.  'b"  S.-ip.  ir  jolAt  lalvors  aad  efforts  na  the  faria; 
tl-oat  th.s^.^  OT:b>?.<up-ar,i:/  5Cld  tlyi.  Fallr.  oour>.ty  la^^.d',  and  in  1997  "bought  a 
tract  of^lvO  ar.T&^-  ir.  Lmpasac  ccic:i.-^y,  aziil  in  I'^-'A  "bOLielif;  aaothsr  tract 
of  VfC  acres  i;i  tie  caci'i  r:oinrty„  "be.'.n::  tho  t-„o    l-racts  in/olved  in  this 
s-.iih,  a;j.d   tiiat    S\e.£3  t'-u   tra^.-K  cf   ij-.D^  were  f.aici   ft  r  cui  of  the  ivrAs 
dciivfed  ir-ii.  i-.he  srxlQ   if  the  Tails   co-.uti:y  trts^-t  said  frcm   iJieir  joint 
labors  in  Lntr.pasa^  o.nua^jy.      It  is   tm:  that  the  deeds  to  tlie   two  tracts 
referred  to  v^re  t?.v.!-^ri  in  the  npiP.e  of    ^hi  defendant. 

In  Hayv.or^.h  v.  TTJlia^s,   10?,  To:;.   51",  ri*?  S.  Y'.  45,   our  Supreme 
Court  in  consic.3.f;j-i^  tiac--  rights  of  a  0:-:.rr:.ed  voj'isin  ocoupyin,^  the   same  re- 
lation to  a  man  tha,t    rlxi  dof'snd-mt  in  tris  case  occupied  tovvfjrds  S.  R. 
'i.'atcon,  -uced  thi*:   L?.r.::*Jii,rG:     ''(Hie  records  sho'v  that  in  L^CO  the  laid  in 
suit  v;aE  conveyed  "by  d--9'i  re^ilarly  e::ec'ated  to  '/jiomas  Jefferson  for  a 
recited  cas}i   oousidurat-' on.   a'^V.:nov.leg.;-r;d  to  have  boe;^  paiii  "by  him  at  the 
timci.     LlarcTSth   iVilLisxT.;'  rl^'-t  .if  thi:^  property  x^  a  racstlor;,  of  fact 
to  130   cub.-Dr,.M-'.'d  to    ths  jury  i;.oder  pre v.^r  uvitrtictlor'5 .      X:?  Ilafi'^eth  '"/V.l- 
liai-ns  can  e?avv  that  the  laoney  \;:Ltl-,  \/hj.(jh   uhe  jand  vb.s  py^chased  v/as  ac- 
quired in  v'hclo   Ti-   ii-i  pa::t  hy  ?£3:' lab'^r-  .in  coijasoticrj  vlth   Hicr^s  O'effer- 
cor;  before  t'-r-i  ti..vra  v,her.  the  la/d.  vr.t  pur'il-iase'.l,    thou  eh?   -.;oul.?.  'be  en- 
titled to  a  £har.'3  in  the    l.'-iid  in  tiao  p^cjpjft Ion  that  her  laVnr  ccntri>u- 
ted  in  prod\-n  1,1:3   ^'^^-  purchase  money v     riot.-iins  ".-Thjoh  she  did  c  ontrihucin^ 
to  the   inprovou-^t   of  t.^-p.  property  or  ot'iervJi, re  :.n  c.c.-ai'.p.ction  'vn.th  Thomas 
Jefferson  after  ftie  deed  V/ac  ijade  arx!.   f .:  e  larsc  paid  for  ?.;jn  affect  the 
title.     Her  ■•.•l,::;ht  nar.t  ha/e  e:ris*ed  in  the  fijiii  which  purchased  the    land, 
and  no  trust,   ra  favor  of  iiargreth  './i'l  Jiaiu-j  vrill  arise  oni   of  the  dealings 
tetv/een  h9.r  a^il  ir&.fCr>rFcn  after  the  ti-.Ta  had  vestec^   ir.  him.     Allen  v. 
Allen,      ]01  To:-..  'rC-.:.,   107  5.  ".7,  5P5;   KiJilcv:  v.  Znilow,   72  Te::.   €2-9,   10 
S.  '<7.  72^.     It  5,s  r.'v,  roiicessar^-  ihi'l  liargreth  yillicmr.  should  prove  that 
she  produced  Vy  l:!er   iahor  a  Part  of  the  very  mciwy  viiat  '..■as  uiied  in  pur- 
chasing  liio  Isrid.,      If  £:'£  pzd  Tneraas  J-.^ffersoii.  ■'.vere  v/orhirig  tcgether   to 
a  coixion  purpose-,   axf.   the  proceeds  of  ?^'bor  xosrfoaaed  by  tl^n  bee  acre   thje 
joint  property  of  the   tvro,   then  she  -.oij.d  occupy  tlB  position  that  a  raan 
v.Duld  l^ave  occupied  in  relation  to  'Zionas  Jefferson  under  the   same  cir- 
cianstances;  eac?a  voald  ov,n  the  proper^Vy  acqiiirad  in  proportion  to  the  val- 
ue of  his  labor  oonbri"^jted  to  t3ae  acquisi\,ioi_  of  it.      In  the  statement 
of  t:-£  evidence  in  this   case  by  the   court  as   it   is  ribinitted  to  us,   there 
is  no  rr.enti.cn  eade  of  the  financial  condition  of  T'hon:a,'i  Jefferson  or  of 
Ilarsreth  v.^] liams  at  t^ie  time  that  they  united  their  fortunes  unla^/fullyj 
nor  his  financial  condition  at  tl£   tiire  he  came    to    Te::as.      Hie  source 
from  v/hich  the  money  v.-iii  derived  for  the  purcliase  of  the    lard  is  not 
iUPxle   to  appear.      T-.o    legal  title  was  vested  in  Taoae.s  Jefferson  by  the 
deed,  and,   in  order   to  partici.pate  in  that,   Ilar.yreih  Viiliiaifls  must  show 
a  state  of  facts  --liich  ..ade   ILicaas  Jexfeiscn  a  tristee  for  her  benefit, 
and  must  prove   such  facts  as  :/ill  enable  the    jury  to  say  viiether  or  not 


I 


252. 

she  contrituted  anytMag  to  the  purchase  of  tic   land,    ard   ii'   co,   the 
proportion  of  Iior  contritfution." 

J.s  Ehow-n  13:-  the   case  cited,  S.  K.  V/ctson  cicqmred  an  interest  in ^ the 
f.-o  170-acro   tracts  to  fha  e:;tent  of  the  consideration  furnished  h'/  him. 
21-iC  lindiiXi'S  sIx)-'  that  t'ley  were  paid  for   out  of  the  funds   o'Dtained  from 
the  sale  of  the  Palls  ceunty  tract,   and  the  joint   labors  of  £.  R.  Tvatson 
and  the  defendan'!:;  hut   in  v/Iiat  proportion  of  Joint    labors  tlje   judge  said 
h3  could  not  deterxnine,      Ihe  seventh  aixl  eijjith  findinss  of  fact  sho^7 
that  a  cash  p^Tmenb   of  $900  -..as  made  \fl\e-a  the  first  170-acre  tract  v/as 
piirchased,,and  that  a  li're  payment  of  v700  -./as  made  v/hen   ^e  other  170- 
acre  tract  was  pxirnliased.     Lfo--/   it   is  clear  that  these  t^vo  payments, 
£.norjitin3  to  §1,500.^  vera  rnade  out  of    uie  prcceeds  of  the  sale  of  the 
Falls  county   land.     'Hie  rc.lls  co-onry  tract  -./g-e  deeded  toC.  E.  './atson, 
.ml   if  the  proof  failed  to  sbD-.v^  as  the  tricl  oourt  held,  v.hat  proportion 
of  the  consideration  paid  fov  t]:a.t   laif.  \;a£  fiunished  by  the  defendant, 
ths  cairt  should  h^ve  treated  the   --.hole  of  the  Cl»200  comprising  the   tvo 
cash  pa:Tnents  far   tlic  170-acre  tracts  ^£;■  the  prapert^'  of  £.  R.   watson; 
and  to  that  c-t'int  at  leatt  tl-j2  defendant  >j5ld  tliose   t.vo   tracts  in  trust 
for  the;  j!i£iiiB4^^s,  unless  the  defendant  acquired  title  to  the  Ol,500 
referred  to  by  donatio:-,  or  gift  from  S.  Ei  Watson.     On  the  latter  subject 
the  court,  foi  some  reason,  mat?-e  no  specific  fird-ii^j;  but  aereTy  stated 
tLiCt  the  defend£:.t  claimed  the  i:'roccGds  of   tic  sale  of  the  Falls  couixty 
land.,  t  ooh  poEiSQEsio:.  thereof,  and  loaned  it  out,  and  took  the  note  in 
the  nano   of  S.  11.  Watson  a:-d  that  he  stated  that  it  '-/as  hers.     Instead  of 
reciting  fiie   testimony  bearing  o:.  the  cuection,  the  trial  court  should, 
liavo  rjado  a  finding  as  to  -..h ether  or  not  I.  P..  V/atson  cade  a  gift  of  the 
money  referred  to   to  the  defei.dant.     If  sich  gift  -.ras  made   the  plaintiffs, 
TJho  assert  title  thrt)M-gh  a:d  u;-d.er  S.  R.  ■'.■atson,  must  fail.     This,   ho-.- 
ever,   \;ould  not  be    ftie  case  as  to  the  plaintiff  [Jallie  V.'atEon  claiming 
titlc  by  virtue  of  her  cor/nunity  right.     'Tnile  it  is  trre  that  the  hvts- 
band,   ./hen  not  acting  in  fraud  of  the  rijits  of  the  v;ife,  can  sell  or 
oth(3."ri.se  dispose  of  co.jmnity  property  -..Ithout  !:er  consent,  he  cannot, 
in  fraud  of  her  rights,   give  or  donate  her  interest  therein  to  a  stranger. 
Pom.  Eq.   Jur.,  Lee.    503;  Ilartin  v.  iloran,   11   33::.   Civ.  App.   509,   32  S.  Vf. 
904- .     It   is   so  repugiiant  to    oui-  sense   of  justice  that  this   court  v.lll 
i-ever  sanction  the  propositio;-.  tiiat  a  husband  may  desert  his   lav--ful  \n.fe, 
axA.,  vhile  living  in  ad"ultery  ^vith  aJ-iother  v,TDma:.i,  donate  to  the  latter  as 
a  gift  hie   ./iie's  interest  in  the  prcpert^'  ov.'ned  b^-  then  i:\  common,  vai- 
lesE  the  Legislature  enacts  a  law  vhich  -/ill  admit  of  no  other  construc- 
tion.    Of  course,    the  lule   is  differe:it  as   to  children  end  all  others. v;ho 
claim  title  by  inliex'ita:ice,,  because  a:i  heir  caiuiot  question  the  right  of 
hit  ancestor   to  do   as  ho  pleases  -.ath  his  property.     3nt  tliat  rule  of 
la;'  has  :io  application  to  a  husband  or  \.ife  asserting  title  under   the 
statute  regula.tir.^'  the  status   of  comnunity  property, 

Hie  E  i:uli  as  si  gnue:^.t  relates  to  the    tiial  coun-t's  holding   in  regard 
to  the  i::erEo:xJ.  property'-.     Iluch  of  v.hat  has  already  been  said  has  appli- 
cation to  that  bra::ich  of  the  case,  \vitji  tliie  difference:      If  there  v.'as  no 
vritten  title  to  the  pe:csonal  property  the  legal    title  rested  in  both  S. 
R.  Watson  a:id  the  defe::daiat;   and,    in   flie  abEe:ace  of  proof  to  the  co::trar;;s 
it  miglit  well  be  assumed  that  each  furnished  half   of  the  c ons id e ratio:, 
and  a/ncd  a:i  undivided  one-half   interest,  u:ileEE   it  sliouli  be  made   to 


/y^  7^^_  ^    /  /t^^t-^-  ^.^<^^'i^^ 


V 


I 


Eo3. 

5;ppcar  tliat  S.  3.  'Vatsoia  hafl.  micLertalEi^  to  doi:ate  or  ^ivc  his  intorect 
tloereiu  to  the  cLefai-c'.aLit,  iu  rlucj.  ovar.t  Giq  rules  of  la\/ lioreinbeforo 
gpaouuced  cor.cer:..iiz;,'  j^if  tc  v/ould  have  application. 

The  othei-  assiji^jnaiitc  presout  questions  already  cousiderod  in  tiaic 
oiJinioii,  and  lurtlier  dircu$sion  is  not  deemac".  nececsary. 

Eie   trial   corxt's  iindii^s   of  i'act  are  not  Etti'icient  to  enable 
tliis  court   to  dispose   of  the  case  on  its  r/erits.      Iterefore,    on  acco\:n:t 
of  tie  errors   relerred  to,   the   jud^aent  ir  -^^eversed  and  the  cause  re- 
rjsaaded  for  another   trial. 

Reversed  an^.  i-eEia;idad» ' 


.Mhi-^ 


x^'-y^. 


5  ^ 


e^.  vj-  M     \ 


4^ 


^^    ^ 


C^        ,-c5-t? 


^^-^ 


iP^-'C^'^-^ 


CHAPTIIi  IV 


CITAII   ONS 


Power  of  husbarid  to  manage  and  control. 


Eichmond  v.  Voorhees   (1694) 

Barker  v.  v;oolery   (1895) 

Standard  Furniture  Company  v.  Anderson (1905) 

First  National  Bank  of  V/enatchee  v. 

Fowler   (1909) 
Schramm  V.   Steele    (191i1) 
Olive  V.  I!eek  (1916) 
By an  v,   Lambert   (1908) 
Wooding  V.    Grain   (1894) 
Koth  XT.  Kessler   (1910) 
Bro\mfield  v.  Holland  (1911) 
Washington  State  Banlc  of  Ellensbiorg 

V.   Dickson   (1904) 
Converse  v.  Labarge   (1916) 
Norgren  v.  Jordan  (1907) 
Olson  V.    Springer   (1910) 
Kanning  v.  Foster   (1908) 
Schillroff  V.    Schillroff   (1908) 
Payne  v.    Still   (1894) 
Holly  Street  land  Ccmpany   (1908) 
Prouty  V.  Prouty  (1892) 
Snyder  v.  Harding  (1904) 
Monroe  v.   Stayt   (1910) 
Pearl  Oyster  Company  (1909) 
Horr  V.  Hollis  (1898) 
Zinn  V,  Znopes   )1920) 
Hensel  v.  Bissell   (1920) 
Heinemann  v.   Sullivan  (l910) 
Thomas  *.   Scougale   (1916) 
Hargrave  v.  City  of  Colfax  (1916) 
Young  V.  Porter  (1902) 
Colcord  V,  Leddy  (1892) 
Try on  v.  Davis  (1894) 
Hinkbouse  v.  Wacker   (1920) 
Spreckels  v.   Spreckela  (1897) 


10  Wash. 

316. 

10  ;irash. 

484. 

36  Wash. 

582. 

54  Wash. 

65. 

97  Wash. 

309. 

103  Wash. 

467. 

49  Wash. 

649. 

10  Wash. 

35. 

59  Wash. 

641. 

63  Wash. 

86. 

35  Wash. 

641. 

92  wash. 

282. 

46  Wash. 

437. 

60  V>'ash. 

77. 

49  Wash. 

541. 

50  Wash. 

435. 

10  Wash, 

433. 

46  Wash. 

422. 

4  Wash. 

174. 

34  Wash. 

286. 

57  Wash. 

592. 

53  Wash. 

101. 

20  Wash. 

424. 

Ill  Wash. 

606. 

110  ^aah. 

566. 

57  Wash. 

346. 

90  Wash. 

162. 

89  Wash. 

467. 

27  Wash. 

551. 

4  Wash. 

791. 

8  Wash, 

106. 

112  Wash. 

253. 

48  Pao. 

228. 

\P>  m  W  «.    V~ 


254-. 


» c-f v^  Q.      Wv^^a^     "T*      f^N  .a.  >^  «^  ^ 


II.  i".  BLuI'i  ot  al.,  ?ior,pondontG,   v.  V/ILLIAi-I 
J.  51:121-:  et  rl.,  A;i:pollants. 

(66  vrash.  192,   1911) 

Appeal  fro;.!  a  jurfc-.-JS/it  of  tla.3  suparior  ccui't  i'oi  Ki.ic;  county,  iJf-CQ- 
nan,  J.,   Cli-i'jer.'cr'.   ■.pvil  24,  1911,  upon  liyX-iu^i,-   in  f.-voi-  oi'  tlio  plaiutirlX, 
■i".  an  nr^-in,  v'nv  -  p,',rn  p..  j Oil  -iic  c?nc6llL.tio:-i,  after  ;  trial  'oefore  t-x. 
oQUi't  wltho^lt  a  jury,     affirmed. 

SlliL,  J.— Ib-e  jes-.;our.eats  bi  Q--rjit  tl-is   actip-.i  to  rescind  a  co'ajiract 
for  ail  e;:ciic::.,e  of  re:.l  e-Jtate  for  ^  lease  siic.  tlie  furnitvre_of  aai  api.rt- 
ivm:.riToTr>.j   i:-   ;;:x'^""oro7~of~£ea-ctle,   aid  to~T3t  aLic;.3  ajleed  oi' "cort-„i^  reel 
3rt;..te.  iVi.ido  0     t'..3.i  to  t:y    -,-jp-Ti..'i.,-iitL.,  on   tiie  aroui-iTQf  fraud  and  deceit- 
clcli^isd  to  liave  '•:)Og:i  pv.:.ctic3d  by  tlB  appellants  to   i:-Lduce  tlie  e::claa:ii^ 
aiid  clco  0.:  t:z£i  j^cji'L  ox  alle:5ec--  failii-e  of  tlio  appella:it&  Jo  perfoitri^the 
^ntraci;  ou  t:.iOi--  pa:'t.     Hie  cause  -'as  tried  to  the  cotrrt  -/itlaoiit  a  jur:;''. 
n-ora  a  c.ecreo  resnii.c'i.iijv,-  tLa  coutract   ..uc".  cetting  aside  t!:3  deed,   tlie  de- 
f3iids..ts  lic.vj  cp:pej;ler.. 

xlie  a3-re-j.:o-.t  for  t>.a  e;cclx,:aiG'0  V/ac  iyorbal,  a^i-    tiae  evidence  as  to 
vviiat  tie   airscneiit  aot.-cllv-  ./as  is  e::t:euiely  corflictin^.     The  coirrt  fou:id 
a^-d  -,,0  tnii.;-:  'die  fiidiuj  -ras  supported  hj  a  prepondaruico  of  tls  evideuce, 
tLat  it  v.-a^-  agreed  ■cl-..^t  tlie  def ei^-riits,   appsllcttitb,   appollaats  hers  slioul;" 
trstisfor  o['  bill  of  sale  to  f_j3  pljintiffs,   retpoiidents  here,  an  ap^.j.-ouent 
Ixouse  laioifn  ar.   c?..e  Hetropoliiaii  xiotol,  consistins  oi  the  iuruisMni-b,  5,'ood 
\7ill  of  tiie  busf.^ss,  t-.ll  adv?5iced  reiits,   tii3bool;E  of  the  business,  a 
lease  of    fiie  proMi;:»cs   ■ath  a  ^.-ritten  consent  fion  the  l:.ndlord  conse'..ti:.'.i' 
to  tha' transfer  end  e-;te:.idin£,'  -iiie  lease  for    t-.'O  years,    ^iid  reducing   2.1.3 
rental  froa  .'-I-dO  i^er  ..lon-Jh  to   '.C;7o  per  aonui,:    tnat,   in  oncloanse  fa-    ti-...ese 
tl.ii:^-s,   ti.e  plai^itiffs  \;ere  to  convey  o"  deed  to  tlie  de:,.endants  tthe  lous 
and  ccrcago  described  in  tlie  couiplaint. 

It  is  adait. -ce'-'.  tl-iait  on  Llay  10,   1910j   tLe  respondents  dalivered  a  C.qo^. 
of  t.e  roal  estate   to  tho  appellants,    aid  Z:z    app^.llant  Loretta  biniti;.  de- 
livered to  d.e  respondent.'    a  bill  cf  s;:le  of  t:.e  fui'niture  and  ftirnishins'S 
in  the  ap<a't:aenc  house  on  its   j;'...ce  purporting  to  be  ha.-  separate  instr-rient. 
It  -was  not  sijneu  by  he;,   husband,  nor  v;as  lie  ref3:^'r9d  to  therein.     H.e  re- 
spondent xilarz  testified   th^t  he  accepted  tins  bill  01   iale  upon  the  ass.ir- 
cnce  of  lire.  Eaitl:.  sad   Cio  a^'ents  •>  ho  nejiotie  ted   the  a.icl.a:i3e  th^-t  Izei  hni- 
b-.;.d'c   si:;;nature  ".;as  not  uooecscry.     'Zie-~3  "as.^  however,   no  evidouce  tend- 
in^'  to  &„o,.-  that   this  prope_t-y  --.'as   £ie   sepsn-.it3  property  a£   LL-s..  Sniitri. 
the  clii;-:ied  thi-t  the  failure  or  her  Iiusb:^^?-  to  join  in  the  bill  of  s£..lo    . 
v/as  a  irxire  arersiiiit.     Upon  leceivinc  t"ie  bill  of   sale,  respondsnts  e^siraed 
l>osceEsion  or  'd.e  premises.     It  appeals  th.-.t,   on  th3s.a^ie  day,  Ivh-.  Blvsn, 
Hr-. ,  Liiuth,   aid  her  a::'ent ,   a  IIi  .  'Jilson,   called  upon   Vest  c;  V/neeler,  agents 
for  the  OT^fliar  of  the  hotel  building',    ?nd  sor.jjlit  to  secure  theii-  coi^ssent   to 
tie  traiisfer  atid  six  entenfcion  of   the  lea;.3,  but   tliesc  a^;^nts  refusec.  to 
accept   u-e  rawpondsnts  as   tencuitc    .Ithoiit  firvtlier  in-v  3:  tiyation.     Zie  :^e~ 
spondcnt  Elnia  ^ave  ti.sa  certain  refe.ences  as-id  "'^nt  a-.'a;''..     A  day  01    t  "o 
later,  ihs.  Sraith  deliv-ered  to  the  ret-pondent  Dlmw  the  locse,  'r.'ith  an 


i 


255, 

acrisiment  e::eci:toc'.  liy  herself  sutl  Iiuc^band,     7h.Q  leace  "by  itc  tornL  coiild 
not  to  accijae<i  'Without  tl'jc  vo-itten  coix-ent  of  tlierovmer  of  tlie  premicec. 
lire.  Smith  clairir  tT-^i.t  lI'c  then  su;;3;o;:ted  tl:at  f.^oy  Qo  again  to  the  prop- 
erty agcntc>   ■r'.C-  t^aciu'e  thei-r  con:.ent  to'  the  tranc^fer;   that  Blum  thou  ctatyr 
tl-at  he  coult.  not  ~o  at  tl-at  time,  "but  tl::at  he  v/ould  see  to  the  matter  hiu- 
tslf;   tliat  he   caid  he  cared  notlain;^'  about   the  Icate  an?-  e;:preccod  diccati::- 
faction  v/ith  the  numser  of  vacant  roomc   in   tic  houce,  but  at  that  time  h3 
save  ha-  a  va-itton  agreement    to  furnirh  abctractc  of  title   to  t:-j2  real 
ect?te  v.hich  he  I^^d  conveyed  to    t23  ai^pellantc.     lire.  Smith  then  paid  to 
tho  recpondento  about  ;';32,   \/hich  che  claimed  ---ac  the  amount   of  advanced 
rente  collected  by  lier.     Blum  toctifisd  that  he  ag:  in  called  upon  the  prop- 
erty'' acentc  ,   c:x.   tliey   ag:.in  refucec.  to  con:.ent   to  the  trancfer  of  tl'ie  l?a.i'^.., 
and  nover  at  .-..ly  tine  recosuized  him  ac   a  ten;;nt=     It  appears  tl'jat,   at 
about  tl-iL  tim3  the   recpondentc  dsterrnned  to  bring    ruit  for  a  reciccion, 
a:id  "ade  no  further  effort  to  secure  lecognition  ac  tenant:  .     ^he  evidence 
sho\/c  tliat   t!'e   leace  had  been  i'ormerly  aLcignod  by  the  Smiths   to  one  Jax- 
nigan,  but  t'nat   they  '.till   retained  pocoeccion  of    it,  'j.id    co  far  ac  the 
evidence  r.ho\/c,   J.-i"nig?n  rrde  no  cl;ira  upon  the  property. 

Both  re!:^:ondontL   testified,   in  effect,   tl-uj.t  during  the  negotiationc 
leading  up   to   the  e-:ch,?ngG,  Utl.  S^nith  repr'^tented  that  Sie  room;,   of  the 
hotel  v;ere  noar?y   -^11  occupied  by  de':irabl9   te:ia.ntc,   and  thrt  the  bucincj.;: 
•"ac  producing  a  monthoy  incorne  of  over  '';^700,    -n.d  represented  the  mont'-'ly 
operating  e::pen;.e  ^.t  about  7400;    tlaat,  -l.ei  die  e::hibiued  the  roomc   for 
t:-J2ir  incpection,   all  bui    thirteen  of    cL.e  eighty  roomc  chov/ed  evidence  of 
tenancy,  lucIi  a-  clothing,  valines,   and  tl'£  rei-iains:   of  food  a"Jt:  drinh  'upon 
the   tablet:    t:i^t   C\z   told  thoa  L.i::t3'- three  of  tlie  roO;-r  were  occupied  ':y 
deciiable  and  good  P-:yii:g-   tent-nts,  a  :x.  that  che  -va^    leceiving  foi'  each  of 
the  rented  loora:;  aix.  apartments-  much  more  Cisn  che  was  act'-ially  receiving; 
tli£.t  Eoon  after  tli^Y  tool-:  pocceLiion,  the   fret  develo^.ed  thst  only  abor.t 
tv.'enti'-five  of  th-3  roomc   "ere  occupied,  :  :d   thece  for  t/.e  noct  part  by  im- 
moral people  givon  to   lightiiAg  end  other  die  orderly  conduct. 

:J.1  of  tl:3  fo-.'egoing  testimony  of   the  recpondentt  wao  vehemently  con- 
tradicted by  Mre.  Lmit:.,  ■  "".lo  testified  to  the   effect  th.c.t  respoixLentc  v;e:  3 
accorded  every  opportunity  to  investigate  for  thenselvei.;   tliat  she  told 
them  tls/'c.  :,  great  ..lany  of  the  rooms  './ere  vacsnt  and  th^t  elie  mjx.e  no  repre- 
seno-tioni,   a-    to  ■-•^rt   th3  montliLj'-  income  a:j*:.  e::pense  v/oald  lie,  but  c^ld  tell 
them  that  bucinsss  was   then  dull.     The  agents   'ho  negotiated  the  a/.change 
also  testified  t':at  tlsy  told  tl'.e  respondent  31um  f.'iat  m£ny  of   the  rooms 
'.;ero  vacant.     On  ths-  other  hcnc.,   t^e  res:.-ondent£  produced  a  paper  shomng 
figures  \hich  they  claimed  -.rere  msdc  ''oy  Mrs.  Lraith  in  dei-nonstrating  the 
inco.ie  and  enpenses  of  the  bxis  iness   .hich  corroborjte   their  t3stimon3"  as 
to  her  re^iresentationc.     Ih-s.   Smith  end  not  deny  tliat  che  made  tie  figuies, 
nor  did  che  offer  airy  satisfactory  e:::^jla:iation  of   them.     It  also  develope'.- 
tli„t  the   cuii'ont   t3i.:es  upon   tie   furnituie  were  unpaid. 

One  Ljvenberg  testifiec.  that  the   res_.ondent  Bluin,    dxortly  before  trls 
action  -..'as  coirtnenced,    told  hi:.T  that  he  v;as  going  to  su.e    to  recover  the 
propert3''  conve3?'3d  becs.cs  e  theie  had  been  found  tracfe  of  coal  upon  a  ce:- 
tjin  twenty  acre  tr_ct,    aid  th:-t,    if  he  could  r scorer  tiis   tr^ct,  ha   GO---.L. 
.aa"!cs  a  good  sale  of  it.     'riie  t9stimo::;3'-  of  tliis  -..Itness  -vas  not   convinciic? 
^nd  in  a;iy  event,  ■/e  consider  it  of  little  materi£lit3-  in  viev?  of  the  en- 


256. 

tiro  record.     It  •./£.-.  ^jroven  "b^  a  iiuinlier  of  v/itnei^cec  that   the  lotc  and 
acroase  conveyed  to   the  ^.p^cllantc  by   the  i-eo^-ondaatc  h^,d  a  value  oi"  about 
,'3 ,  500 . 

Ou  ilay  26,   lalO,    the  reG:,:'Ondentc   instituted  thic  action,   and  both 
Pi^rtiei.  deuyir^-  ov/neriiil^,  a  receErer  v:ac  ap_:ointed  by  t/e   court   to  talre 
cliar^'e  of  the  f\-.rniture,  r/Mch  v:ac  finally  sold  by  the  receiver,  uixler  th3 
direction  of  tlic   30urt,    for 'vTOO,  v/Mch,   with  rente  collected,  remainc   in 
the  resictry  of  the  court  cuTcject  to   the  erzpencec  of  the  recei-trerchip. 

Slaa  fores'oin^;  anr.lycic  of   the  evidence  meket-    it  plain  that   the  judg- 
ment of  the  trial  coiu-t   should  be  affirmed.     It  xc  manifest  that  the  agre'^ 
neut  of  enchange  v/ao  never  perforned  by  the  appellant c.     There  v/a^  a  f ailui - 
of  consideration  for  tZ:e  recpondents*   convei^'ancG  of  their  lotc  and  land. 
The  appellantc  di':^  not  rnalce  e/ny  effective  trancfer  of  Eie  le:-ce,  nor  secure 
an  G;;tGn£ion  thereof,    ,.iiL  the   evidence  malcec  it  reasonably  clear  that   they 
could  iiot  do  CO.     In  f:.ct,  Ih-c.  Smith   ctated  that  the  appellants  did  not 
o-''n  t:j2  leai:e,   r.nd-rs!;  fin.- lly  driven  to  the  position  that  all   tliey  attempt- 
ed to   Loll  v/as   the  fvixniture,  a  position  contrary  to  the  overv;helming  vreish'' 
01  the  evidorjDe  omL  utterly  inconsistent  Tath  her  ovn,  act  in  attenpti::S  to 
trai-sfer  tl:Q  lease.     '  .hile   tZ-j^re   .Jas  evidence  to   the  effect  tlmt  Blum  said 
he  ';ould  attend  to  tlie  lease  himself,   and  cared  little  for  it  an^./ay,    tI^at 
vas  after  he  had  parted  -.it:-  his   deed;   a:d-  it  is  aj?p?.rarit,   also,   tliat  ■..'as 
%fter  he  hac.  discovered   th;t    tlie  valuo  of  t;...e  business  rx.d  been  grossly 
misrepresented.     The  evidencs  \.'as  not   sufficient  to   estop  him  from  claim- 
ing the  right  to  rescind.     There  ca:i  be  little  djoubt   that  the  appallairts 
representee  tli.it    tliej  o./ued   diG.  lease,  could  ti'ajisfer  it,   could  proctr-3 
t.e  o'.rner's   co-^ent   thereto,   a_id  could  procure  a:-,  entension.     Tliese  rep- 
resentation^, u:xlji  tho  evidinc3,   co instituted  actianabls  fraud.     Jaidco^/s^' 
V.  Slade,   60   %ch.  6S1,    111  Pac.   77S. 

EiG  res^-.ondo::ts  also  had  the   richt   to  a  valid  bill  of  sale.     Thoy 
never  received  one,  a.d  none  -./'as  ever  tendered.     In  the   total  absence  of 
evidence  tliat  the  hotel  f m-ni  tiire  ->.'as   the  separate  property  of  tl^  \.lfe, 
thore  is   a  presui.iption  th:t  it  -./as  cOirimunity  property  of  herself  and  her 
husband.     The  statute,   Re.;,  d  Lai.   Codo,   Sec.   5917,  declares: 

"T!ie  husb^^rc^  sl'^^ll  have  the  manaG;e.-ient  and  control  of  r-.n.-a.-nni  ty  pp-r- 
sonaj^px'0^^3r'C3',  -./ith  lihe  pp., Br  of  dis_.os it iQj^_as_he  Jig.s  of  his_  separate 
personal  pro',  ort-,%   3,.G...t  he  sh,-rl  1  not  c:.^Trl=  by  -nil   v.-iotp.  than  one-half 
tTIereof ." 

^  the  record  beiore  us,  haC  the  bill  of  sale  been  e::ecuted  b-  t2'i3 
Z-Usband  aix.     lie,   or  by  tli^e  husb^.raif-  alone,   it  •"-■ould  have  been  SLa'ficient .  v^^i- 
rl£vl:-<;,  ^°  "  e:-ecut3d  by  tie  v/ife  alone,    it  -vac  _aj]ullitj^.     Under  t!ie  evi-     ^  -.^ * 
dence  adduced,   t'.ie  res^joiidents  -.-ere   entitled  to  a  redicsion  for  failua-e  of        \ 
perfonaaiice  by  t-.e  appollsnts.     17  Cyc.   856  et  sec^. 

Ilorcover  ti-.o  evidence  cuctaini    Sie  court's  finding  that   the  appella:its 
■■ere  guilty  of   fiaix.  a:x.  deceit.     A  careful  e::a.vdnation  of   Gie  evidence 
convinces  us  tl^at  Mrs,  Lmfc  represented    tlie  monthly  income  fron  tl-js  bus- 
iness much  in  sixers  of  tlie  realit^'-.     She  also  represented   that  tZia  tenants 
"■•sro  01  a  dacir:bls  cla.ss.     The  evidence  indicatec  tl;-,t   tlisy  -./ere  not. 


» 


I 


257  i 

Tliec'C  -.■ere  mattarc  i^cculiarly  -.athin  t:-e  luiov.-lec.3;e  of   tl-.e  ai^^pell-itc  cncL 
unloiov.-ii  to  tlie   Toc^'Ond.3-^tz,     l.^a  reciJOixLeutc  rnaCc  an  impcction  of   fce 
preinirGc,  but  n:it:ier  of  tiiese  tl.ingc    .oulcl  "oe  cUccloccc.  "by  an  incpectio:.^ 
and  tliero  it.   ovic.ence  that  vacant   roomo  -'ere  co  arr  ngecl  ac  to  appear 
tenantec..     2h.3  rot-jonclants  liact  tlie  ri^lit  to  rol^'  upon  thece  repreccntation-': , 
especially  -.."Iian  active  Gtepc  v/ere  talisn  to   tlirov/  tlien  off  t'^.eir  gu^.rc.. 
E-jat  they  did  go  rel';',  can  hardly  "bo  quectioned.     Johncon  v.  Hyan,   62  '..'a^ih. 
60,   112  i-r,c.   111-.:;   \.'ooddy  v.  Benton  Water  Co.,   54  v/ach.  124,   102  Pec.  1054, 
132  .Hj-ii.  Lt.   1102:   3ect  v.   Of  field,   59  V/ar/n.  -J:66,   110  xcc.   17  SO  L.  ^-.  A. 
(H.S.)    55;   'I'aconia  v,   Tacoma  Liglit  &  V/a"CGr  Co.,   17  '\IexZ::.,  4-58,   50  JCac.   55; 
Siraonc  v.    :ie^;:ia,   6Z  \7ach,    115,   100  i-ac.   200.;   ttone  v.  Hoody,  41  \7ash.680, 
84  lac.   617,   5  L.  ?..  A.CJ.?.)   799;  IlcIIillan  v.  Hillmsn,   25  "ach.  Dec.  458, 
116  l-ac. — ,    li-    iX4  J;  Ii.ig.  Uncy.  Lav/  {2d  ed.),  p.  125;   Dii-elo".-,   Fi-aud,  p«   oZi-. 


,  Eie  trial  cou.^t'i.   fii"idi;:^-c  of  fraud  a;-d  failui-e  of  perfoimance  on  w:.3 
appellaitc'  part  ••ere  i:act-;.ined  by  t".:3  more  co;vvi;-jcing  evidence.     Tlie  ccuit 
coaaittcd  no   ai':  or   in  enter in^;^-   u'lc  docree  appealed  iron.      It  ic   affi-racd. 

Dunbar,    J.  J.,    Oro' •,   Mor-iL,    ijid  Chad  .iclc,   JJ.,  concui-'l  '~ 


I 


258. 


A.  H.  IIclLi-in:  ot  al.,  Rogpondentc,  v. 
KOIiLDP.  t;  CILlfSE.  ApijeL'i-ant,. 

(96  '-/ar.h.  K-6     IS]/^), 

AlTjoal  fi-oin  a,  juc"'.3::.-icat  of  tlzc  Etipc^-ior  coiu-t  I'or  ICinG'  county,  FrSiicli, 
J.,   entored  Jtily  28,    191S,,  upou  find  in --.-::.   iii  favQi-   of  tlie  PlainMIilfe,    iii 
an  .:;.ctioa  ior  replevin,   tried  to  the  cnvi^t..     AffirmecL.- 

Ilount,   J.— giis    soti.ca  --'as  laroujit  Tj?  tlie  respoadcntE   to  recover  a 
Declror  BrotAerc"lpTa5o  o.i.-  itr.  val-.;e.     .1  .:^iid;jment  r3g3lJLQd_iu^jj,yor_of  ..the 
rsspondsnts"  for  the  v&'Uie  of  tl^c  inswap.     Ejo  dei^endaat  liac  appeE.led. 

2he  facts  are,  ■briefl3r,   at  follo-./s:'     ae  raspondeiits  are  hucbaiid  end 
-..Ife.     liL-E  .  LIcAlpine  lia,d  ctatsd  to  her  hiisbcnd  tliat  £he  deeired  to  e::- 
c.,.an:;;e ,  a  Doclcer  piano  -Mch  they  ovrned  for  a  plaj^er  piano.     Her  hucband 
inforiJDd  l:ier  tli3,t  ho  did  not  decire  to.ditpoee  of  the  Decher  piano,   aixl 
that  hs    :ac  not j;.olo   to  ptirchace  a  plaj^cr  piano:    that,    as  coon  as  he  \ia.z 
a'ole,  they  rd^'ht  pro'ba'bl"  purcliasG  a  player  piano.     Ihc..  i:c;i>in6,  -.iien 
her  hxistand  -..-as  a-.ay  from  the  city,  '.'ent  into  a  e.tore,  of  'hioJi  A.  A. 
Ca-iptcll  -..as  manager  for  appellant,  anf.  told  Var.   CaitplDell  that  the  -./anted 
to  loolc  at  a  player  piano »     Upon  the  nei-.t  day,  Ilarch  20,   1915,  Ilr.  Canp- 
"bell  "brou.jht  a  player  piano  to  her  houcc.     She  tectifiod  that  che   told  IE.'. 
Gaiiipbell  that  che  •js.o  not  authorized  to  ogH  her  Declier  piano  or  trade   it 
for  anotler,  "bocaiuae  her  hu&tand  liad  so   bold  her.     She  al£0  testified,    in 
suTDEtauce,    tliat  Ih .  Oa.-43-bell   told  her  tl^?.t  ho  ^/ould  leave   the  player 
piano  tlaera  for  si;:  uionthi    Cf  a  year  and  that  she  mi.sht  use   it,   and  if  she 
-.vac  not  satisfied  .;ith  it,    she  could  return  it,  ^.nd   fiiat  he  v.'ould  talce  her 
Decker  piano  and  store  it  for  her  until  she  '.-tis  caticfied  to  nia2:e  the  e::-- 
c:-an^:;G.     Zaj  playoi  piano    /as  valued  at  ^BOO,   and  lie  ai^reed  to  allov  her 
a  credit  of  y^lo  foi'   tlae  Leclsr  piano.     At  tliat  time,   Irs.  Ii;Alpine  signed 
a  conditional  till  of  sale  for  the  player  piaJio  and  a  "bill  of  sale  for  her 
Dec'.ier  Brothers  piano,  '/hich  -jas  taicen  av/ay  by  Ilr,   CamplDell.     She  also 
testified  that,   at   foe  tiise  she  signed  the  hills  of   sale,   she  did  not  read 
tliem,   and  that  sie    /as   infonaed  by  IIi  .  Canphell  tliat  tiiey  v/ere  simply  re- 
ceipts for  the  pianos. 

Upon  Ih-.  AcAlpins's  return  to  his  honie  so.  .e  throe  d^s  after,  he  "^.'as 
infor:ed  hy  1L.-S.  ilcJ-lpine  that  the  player  piano  ha*?,  been  left  in  their 
ho:-e  for  one  yeai-  for  approval,   ./ith  no  o'olij-ation  to  p-urchase,   and  tliat 
the  L'octer  piano  l-ad  "been  talren  a\/ay  to  "be  stored  pending  tl^ir  decision, 
ol-B  did  not   infer,  lier  husband  ox   the  e:;.ecution  of  the  bills   of  sale. 
Eiereafter,   on  or  about  June  20,   1915,    tlie  appellant    -ade  a  de  xird  upon 
1'i.s.  i:c„lpine  for  pa;;:r.  ante  due  and  in  arrears  under  the   ter:  .c  of  the  con- 
ditional sale  contract.     Hhe.   tlen  infoi-.ed  her  husband  that  tl:ie  appellant 
'/as  assortins  that  the  player  piano  had  been  purchased  by  her  and  the 
Decher  piano  sold  to  the  appellant.     Upon  beiu^;  inf or:  .ed  of  these  facts, 
lir.  IIcAlpine   told  her  that  she    .ust  rescind  trje  contract  and  retxxrn  the 
player  piano.      Sliereaa ter ,   on  ITove;.ibe»  26th,  li-s.  IIcAlpine  served  a  for;-£-l 

■litten  de,  .anc.  Tjpon  the  appellant   to  tahe  possession  of  the  plaj'er  piano 
and   to  return  ths  Declar  pia'no.     On  IToveiber  28,   1915,   tlie  appellant  re- 

:.oved  the  player  piano  fro.,  respondents'  ho:  e,  but  refused  to  return  the 


259. 

Declier  piano.      Tliereafter,    in  Feliruiiy,    1S16,    this  cction  was  brough-^?  suit 
resulted  in  c  ji:dg;j3nt   in  favor  of  the  resi>ondents   for  ■''.;125,   \7hich  the 
court  found  to  be  t/ie  value   of  the  Decler  piano.     Upon  the   trial,   the 
court  was  of  the  opinion  that  Mrs.  ItoAlplno  was  not  authorized  to  sell  or 
ejichange  the  Decker  piano  and,  for  that  reason,  entered  judg-.-.ent  as  stated. 

V/o  are  of  the  opinion  that   the  trial  court  v.as  ri^ht  in  this  respect. 
The  statute   (Rer.-   Cede,  Ecc.   5917)  provides: 

"The  husband  shall  have  tlx  r-anagerp-n t  and  control  of  cor; -.unity  per- 
sonal property,   -.'dth  a  lite  power  of  dicpouition,   as  he  has  of  his  sepa- 
rate personal  property,   e::cept  he  shall  no-:^  devise  by  v/ill  nore  than  one- 
half  thereof." 

It  is  coixeded  eiat   the  Becter  Brothers  piano  was  the  corriunity  prop- 
erty of  the  respondents.      It   is  not  disputed  that  Ilrs.  LcAlpine  v/as  told 
by  her  husband  not  to  dispose  of  the  piano.     She   told  the  agent,  Ilr.  Camp- 
bell,   that  fact,     nevertheless,  he  toolc  the  Dec  her  piano  fron  her  and 
3fter\/ards   sold   it  for  C'125,   -.Tithout  her  consent. 

It  is  plain  froii  the  statute  above  quoted  that  llrs.  ItoAlpine  was  not 
SLithorized  to   dispose  of  the  piano,  ana  tliat  her  contract  v;as  voicL.      In 
the  case  of  Liars  ton  v.  Itue,    92  \7ash,lS9,   159  Pac.  Ill,  v;e  held  that  the 
vdfe,    in  that  case,   vq.s  authorized  to   sell  an  autor.iobile  v/hich  was  ovaied 
by  the  co;.-^iunity ,  but   that  A/as  a  caseviliere    :;he  husband  had  purchased  an 
automobile  ani  load  left  his  wife  and  had  gone  to  Alaslca,    and  '.here   the 
autoi.iobile  was  classed  as  perishable  property,    and  we  held,  under  the 
facts  of  that  case,   that  she  was  authorized  to   sell   it  ard  convey  good 
title.     7nat  \vas  an.  e::ceptional  case,   and  this  court  said,    in  closing  the 
opinion: 

"V/e  do  not  by  this  opinion  enlarge  tho  rights  of  a  wife  so  as  to  give 
to  such  as  buy  fron  her  any  presu;.iption  of  good  title.     On  the  contrary, 
these  :»ust  buy  at  their  peril  fron  one  \h.o  can  deliver  title   only  in  an 
unusual  situation,      Tliey  can  prevail  only  after  justifying  the  exception 
beyond  reasonable  debate." 

The  case  at  bai-  does  not  present  the  "unusual  situation"  presented 
in  that 'Case.     Here  the  husband  and  -./ife  were  livitig  together.     There  v/as 
no  necessity  for  selling  the  Decher  Brothers  piano.     She  v/as  not  author- 
ized to   sell  it,  but,    on  the   other  hand,  had  been  I'efuscd   the  right   to  do 
so.     The  agent  of  the  appellant  was  inforr.ied  of  that  fact  -.vhen  he   took 
the  piano  av;ay  fron  the  house,   and,   as  said  in  Tars  son  v.  Rue,   supra,  he 
iviust  buy  at  his  peril. 

The   appellant  seelcs    to  justify  this   appeal  upon  the  ground  of  rati- 
fication and  estoppel,   but  we  thinlc  there  v;aE  neither  ratification  or  es- 
toppel, because  Ilr.  I'iJAlpine  vas  not   infer:. ed  of  the  facts.     He  was   told, 
upon  dicct3veri!:g'  that  a  new  piano  had  been  placed  in  the  house,    that   it 
v<aG  placed  there  on  approval,   vathout  any  obligation  to  purchase,   and 
tiiat  the  Decker  piano  I:iad  oeen  taken  away  to  be  stored  pending  their  de- 
cision.     If  he  had  been  told  that  there  wb.s  a  bargain  of  sale  and  that 
bills  of   sale  had  been  e:;ccuted,   and  no  action  on  his  part  had  been  talcen 
after  such  inforration,   then  it  night  be  reason^.bly  argued  that  he  v>'3-S 


260. 

estopped  after  r^alcing  no  o'bjections  thereto.     Quotiiag  fror.i  O'Shea  v. 
Eice,  49  HeTj.   893,   69  H.  V/.   308,    it   is   said.,    in  Ilurphy  v.    Clarkson,   25 
¥ash.   505,    66  ?ac.   51: 

'"It  is  eleiientary  lav/  that  knowledge  by  tie  principal  of  the  nater- 
ial  facts   is  aa  esseuitial  eleneut  of  an.  effective  ratification  of  the 
unauthorized  acts  of  his  agent.'" 

Hr.  lIcAlpino  was  not  told  the  raterial   facts  until  nonths  after- 
wards.    When  he  was  told  that  the  a;?j?ell£jit  claiied  a  sale   and  e::chang3 
of  the  pianos,  he   Ixiediately  notified  his  v/ifa  that  she  rust  rescind 
tha  sale,  and  thereafter  she  sent  notice  to  the  appellant.      Ihe  appel- 
lant cane  and  toolc  av/ay  tie  player  piano  and  refused  to  redeliver  the 
respondents'  piaao>  ^/l^ich  had  been  tatnjn  and  sold- 

\Ve  are  satisfied,  under  the  statute  and  the  facts  stated,    that  Ilrs. 
JIcAlpine  v;as   .Tithout  authority  to  enter  into  the  contract  of  sale,   and 
that  there  \-3a5  no  ratification  by  her  husband  after  the  facts  -.rere  oade 
Imown  to  hin.     For   tliis  reason,   the  judgj-snt  of  the  trial  court   is  af- 
firmed. ^  . 


!-=■    '-•    \r~- 


It  is  unnecessary  to  discuss  other  qaestions  presented  in  the  briefs. 
Ellis,   C.   J. 5  Fullerton,  Parlcer,   ard  Holcozib,   JJ.,  concur. 


i^-'^n-'i-tS^ii^*^         /ci,-i-o^    , 


261. 


11.  H,  It^PSTOF,  Appellant,  v.   OlAF  EUH  et  al., 
Respondents. 

(92  V/ash.    129,   1916). 

Appeal  fro:.i  a  judg-.v-ent   of  the  superior  court  for  King  county,   Frater, 
J.,   entered.  Decenber  7,    1915,  upon  finding's   in  favor  of  the  defendants, 
in  an  action  of  replavin,    triad  to   tlie  court.     Affirned. 

Bausnan,   J. — The  Harstons,  r.s,rried  in  Alaska,  had  accu.iulated  there 
up  to  1912  sundry  nining  properties,  v;hich  in  that  year  tlaey  divided  lay 
deed  to  the  v;ife  of  a  half   interest  and  lier  aclcnov;ledg.;.ent  that   it   con- 
stituted the  husliand's  full  settlei.Bnt   of  her  i-ights   in  those  clains . 
Under  just  viiat  relation  the  nines  had  "been  acijuired  is  not  clear.      The 
■wife's  acquittance  recites  the  one-half   interest  as  hitherto  held   "in 
trust"  for  l:er,   ani  the  neager  testinony  points  to  a  "business  partnership 
in  uinirg  property,   acquired  as  she    testified   ■■'by  joint  efforts.-' 

Be  this  as   it  .lay,   the  division  ty  its  e;:preEs  terr.E  goes  no  further 
than  to  sever  those  particular  assets.     AssuiMing  it   sufficient  for  a  sev- 
erance under  Re:.i,  u  Bal,   Code,  £ec.   8766,   it  -..'as  partial  only.     It  set- 
tled no   otlier  present  or  any  future  property  rights.      ■'Ee  gave  it  tome 
not  because  'le  -.rere  separating  hut  so  I  -.vould  he  protected  aid  he  v/ould 
not  throw  a'v'ay  evsiything  on  tliat  "./oman.     Hiat  nevei-  released  Ilr.  llarston 
as  far  as  my  support  or  taldng  care  of  Be  ".'as  concerned  in  any  '..ay,   shape, 
or  form."     These  coji-ients  on  the  document  are  not  controverted  nor.  does 
the   record  sho-.v  ai'rangement  for  divorce » 

After  this   the  pair  ne:ct  appear  in  Seattle,   -.here  they  lived  apart, 
and  the   infatuation  of  the  hushsnd  for  the  otloer  ->;o.-aan  becoming  shame- 
less, he  boujit  am:,  gave  her  the  use  of  an  automobile  costing  02,200. 
After  this  ha  returned  to  Alasla.      Hie  paraiaour  flaunting  herself  intol- 
.  erably  in  the  motor  car  for  three  or  four  months,  after  his  departure,    the 
\rite  toolr  it   f^om  the  garage  and  sold  it  to  deiendant,  not  out  of  neces- 
sity for  money  but  iron  an  assertion  of  right =      Us  present   suit   is  the 
husband's  replevin  against  the  purchaser. 

The  marital  property  laws  of  Alasfe  not  being  in  proof,  ^ve  conclus- 
ively assume   then  to  be  the  same  as   our.  o-.-n.     Sheppard  v.  Coeur  d'Alene 
lumber  Co.,   62  Vash.    12,    112  2ac.   932.  ium.    Cas.   1912   C.   909,  44  L.R.-l. 
(IT.S.)   267;   aunderson  v.   Gunc.arson,    25  "7a£h    -i59,,    65Pac.   791;    Clarl:  v. 
nitinge,   29  Uash.    315,   69  i'ac.    736. 

Hie  automobile,   acquired  after  marriage,  -."as   then  presumptively  com- 
munity personalty.      To  be  sure,   the  husband  liad  a  right  to  prove  this 
machine  his  o"Tn  out   of  the  previous  property'"  set  aside  to  him,  but  hi& 
ovTi  testimony,  -..'hich  is  all   Giere  i£  on  this  subject,    is  most  unsatis- 
factory.    He  bought   it,  he  says,  from  the  proceeds  of   "my  mining  opera- 
tions in  Alasla."'     This    is  uncertain  or  evasive.     He  liad  not  bought   it 
until  the  year  follo^aug  the  settlement.     Lljstlier  in  that  time  he  had  or 
had  not  acquired  nev/  property  or   received  ne\.'  a£.rnings  from  speculations, 
he  does  not   sho-.v,    or  whether   this   could  not  Iiave  been  from  foi-mer  property 


262. 

still  undividec-.     ITo'v  the  -burden  of  i^roof ,    so   long  as   tliere  v/as  no  divorce 
was  clearly  on  him. 

The  lov;er  court  found  the  automobile  to  "be  a  f£u-.iily  asset,  and  -..'e 
shall  not  reverse  tlv,t  finding.     How  a  v/ife*&  rights  in  family  personalty 
are  not  of  the  CD.iitinaent  sort,   liHe  do\/er  or  survivorship,  but   a  present 
estate.     True,   "by  our  statute  the  husband  is  mgde  manaser  v/ith  full  pov/er 
to  sell  and  dispose  of  this.     But  it  does  not  folio-;  tliat  he  can  give  it 
a-;ay.     He  is,   so   to  spealc,   only   the  hes,d  oi   a  firm.     The  personal  proper- 
t3'  is  just  as  much  hsrs  as  his.     Tlie  very  statute  that  gives  him  sale  port- 
er over  the  whols  ^•estricts  his  testament ji^r  po"ver  to  i  half.     Under  our 
la-7  she  has  lielped  to  create  it  as  -.luch  as  he.     Conss  uently  the  idea  is 
not  to  be  toler^.ted  that  a  husb.ixL  can  give  a  mistress  stocte  and  bonds  or 
j^recious.  stones  out  oi'  the  fa-iiily  money.     ¥.0  pj.rt  of  those  savings  coji  he 
mj-3  gifts  of  against  lier  consent,   even  to  his   o-.<a  ralitives,   though  mere 
t-ifles  to  the  latter  no  doubt  might  be  sust:;.inec.  under  the  rule  of  de  min- 
iiiiis.     Tlie  lav;  cannot  countenance  his  rl^it  to   a  '.;ilfL:l,  preraeditateo- 
vaste  of  fai'ail^;  perion^,!  property,  "wv.ich  is  nov;  so  often  tie  bulh  of  an 
estate.     Tlie  burden  of  proof ,   to  be  sure,  aust  be  on  the  v-lfe  './hen  shet- 
ssaks  to  interfere.     The  presumptions  are  all  against  her.     &he  cannot  act 
upon  v?him  or   tal3e   tliiu:^  into  her  OTn  hands  everj;  time  he  goes  out  of 
to\m  or  snatch  baci  an  asset  -.here  there  can  be  t%vo  rainf.s  on  the  question. 
But  that  in  a  Jlaiin  case  she  must  have  redress  eltiier  by  damages  or  re* 
covery  of  the  thing  itself  from  his  fraudulent  donees  is  ujideniable,   or 
we  should,  be  talcing-  tiie  statute  av/a3r  from  her.     On  tlds  v;e  had  occasion  to 
comment  in  Stev/art  v.  Banl:  of  Jiadicott,   82  V.^h.  106,   K-3  Pac.  458,  \;here 
"vve  said_  that,  \hile   in  a  comuon  lav;  jurisdiction  a  court  had  been  compel- 
led to  acknowledge  th:.t    Uic  husb  nd  could  beggar  the  v;ife  by  giving  av-Tay 
tlie  personal  property,  he  could  not  do   it  here.     Vhat  he  v;as  given  his 
sweeping  powers  for  by  our  ctctute,  we  said,   is  "the  facilitating  fixe 
business  of  the  comm^onity.'' 

Betv/een  the  '.vife  jiuL  the  mistress,    since  the  latter  teclinically  isnot 
•  claimi^5    Gie  dfar,   tlis  principle  need  not  be  furtlier  discussed,  but  as  be- 
tween the  wife  and  t?-.3  husb.jd  a  little  moro  ms^'  be  said.     :.t   the  garcge 
the  C£.r  '.vas   left  by  him  subject   to   the  order  of"  tlie  other  '.voman  and  not 
of  the  vafe.     Tnus  II;.r£ton  had  returned  to  Alaska  leaving  valuable   joint 
personalty  to  be  iiiaorally  consumed  di^ring  a  period  apparentl3;  indefinite. 
Tlie  agent  of  tlis  joint  estate  h..i.  both  desei-ted  and  violated  his    trust. 
MA'   even  acV-iits   that  he  Iv.d  alio'-'sd  his  favorite  to  ascwae   the  name  of 
li-s.  Harfcton  in  Ssj.ttle;  so  her  authority  to-  ccsaplete  the  vo-ong  use  of 
this  motor  cai    is  not    to  be  de:iied.  ■ 

Uader  thets  circ.-^ustsnces  the^afe  clec.rly  had  ;,  right  to  tsire  tliis 
automobile  away  frOiii  th3  gar-ge.     But  Ix-.d  she  a  ri^^it  to   sell  it?     If  • -e 
class  it  2£iong  psiishrhle  tilings,  imdoubtedly.     jad  it  is  with   cliese  tl-^^-.t 
an  automobile  ought  to  be  cl.ssed.     It  requires  insuiance  of  v;, rious  kin:.s 
end  Cannot  ©veu  be  stored  -.Ithout  3::pense.     it  deteilorates  in  time  fror.! 
•mere  loss  of  style.     The  ■•ife  in  a  situation  lilce  tMs  oii^jht  to  be  allo-.;ed 
to  do  -.vith  it  ritiht  she   .;ould  -.0  -.-Ith  he_    separate  property,   or  at  least 
'••liit  a  reasonablsr  prudent  i^^e^son  -./ould  in  liis  on  Qlrctiustances  to  sto^- 
•  ;.ste  and  e.ipense.     2o  concec.s  lier  oi..ly  po^^ession  "ould  not  be  enough. 
I'.xQ  must  liave  a  ri^^it  to  soil  or  lea;e  or  -.hat  else  -/ill  reduce  loss. 


-> 


i^^^       .S«— ^l^^^v-x-W^-M/  ^ 


Or^^-CA^ 


V<*-^'^**^^2^  y 


-r 


^xjeS^^^^^^'^'OT.-p         fi       ' 


f 


l!7   ^,>^C^       ^  *^^<2^*n-<i5S^««C-t>t-55^^-^ 


263. 

Eor  property  ri^^t  in  it  is   as  groat  as  his.      Indeed,   it  maj'  fairlj'-  be 
said  tliat  the  only  cure  protection  she  caild  feel  that  the  mistress  \70uld 
not  get  possession  of  it  again  if  stored  in  another  garage  as  family 
property  -.as   in  getting   it  off  her  hands  entirely  "by  sale,     "hen  a  hus- 
"banci   in  fine  leaves  a  '.Ife  vhere  she  must  seize  a  piece  of  joint  property 
inmorally  givea  by  him  to  her  worst  enemy,  he  shall  not  call  her  to  nice 
Recount  about   the  disposition  she  raalEs   of   it  \;h2U  it   is  e::pensive  to 
Icaep  and  he  has  gone  to  a  distant  region. 

Even  under  the  one-sided  system  of  the  coraaon  la'.;,  -ubBre  the  v;ife 
had  no  interest  in  perconalty,   she  coi'dd   sell  soitb   of  it  if   she  v/ere  left 
in  distress,  and  \hat  that  la\.'  was  obliged  to   e:cteud  to  a  dependent  be- 
cause of  her  i:eceEEity,   our  own  cannot  deny  to  a  partner  in  estate. 

Ihat    Qiere   is   in  the  wife  inherent  pov/er  under  our  lav;  to  act   in  a 
serious  absence  of  the  husband  is  plain.     la  soire  cases  he  may  be  un- 
avoidably detained  at  great  distance  for  a  frear  or  years,  unable  to  com- 
municate with  her.     He  might  be  an  absconder  or   in  distress  or  unable 
froti  many  causes  to  get  back,  yet  laavir^g  perishable  estate.     Shall  a 
v/ife  have  no  ri:;^t  to  soil  stored  eg^'S  after  many  months?     Shall  she  be 
forced  to  hold   idle  in  her  hands  declining  stocks?    Eliall   she  be  unable 
to  sell  a  cov;  to  get  cash  for  the  farm?     In  these  assets,  if  they  are 
acquired  after  marriage,  she   is   aa  equal  partner,     bome  ri^t  to  act 
therefore  must  be  given  her  in  extreme  cases.     Ho\;  far  solely  on  account 
of   absence  slie  may  go  need  not  be  decided,  because  here  v;e  have  both  his 
absence  and  his  authoiri  ty   to  another  to  coirmit  av/aste. 

Ihe    lOTTer  court  having  found  that  the  sale  by  the  wife  was  for  a 
sufficient  consideration^  we  do  not  feel   justified  in  finding  oth6rwi£;e. 
The  consideration  -./as  about  half   of  the  estimated  second-hazd  value  of  a 
motor  car  driven  in  a  fe\/  montlx   fourteen  tliouE£:ai  miles  and  requiring 
some   a::penditures.     ■]!ha  question  now  is  not  between  the  Iiusband  and  the 
vifQ,  but  bet-;een  tlao  husband  and  her  vendee,   to   '>hom,    if  slie  l:ad  a  right 
to  sell  at  all,    El^e  -lafi.  a  rijit  t.o  sell  as  a  husband  loas,   on  toy  terras 
not  fraudulently  lov.     ITeithar  is  it  of  moment    fliat  the  wife  in  cross- 
e::amination  concedes  that   in  selling  she  !nay  not  laave  intendod  to  convey 
Llarston'c  half  interest  also.     llTe  vendee  of  family  personalty  is  not  to 
be  affected  by  mental  reseirvations  of  tlB  selling  spouse. 

It   is  si^gected  that  a  bill  of  sale  she  gave  was  d.eficient  since   it 
•was  signed  not  in  Ilarston'c  name  but  her  av.n.     A  sale  of  personal  prop- 
erty is  good  by  ir-ere  delivery.      In  Blum  v.  Smith;    66  '.7ash.  192,   119  Pac. 
185,   a  bill  of  sale  -.-e  spoke  of  as  necessary  '..aE  contemplated  by  a  bargain 
for   lodging  house  effects  in  a  btiildii:g  not   o-aied  bj'  the  vendors  and  ■rthere 
title    to  soiTC  of  tlie  ai'tiolec;  might  b£  set  up  b;''  otiBPs. 

VJe  do  not  by  this   opinion  enlarge  the  ri^ats  of  a  ">afe   so  as  to  give 
to  STioh  as  bX3;/  fra-a  hei-  m.i'  presumption  of  g-ood  title.     On  the  contrary., 
Ci&^e  must  bu^r  at   their  peril  from  one  -Jno  can  deliver  title  only  in  i-n 
unusual   situation.      Toby  can  prevail  oul3r  after  justifying  the  exception 
beyond  reasonable  debate. 

.-f  f  i  med . 

llorris  ,   C,   J,,  Holcomb,  Parter,   and  I  Iain,   JJ. ,   concur. 


264. 


L.    T.  C^iiiTCE  V.  V/.  H.  ESTElSCin  aad  L.  POOL. 

(2  \;asla.  204     1691.) 

Appeal  from  Superior  Court,   Kittitas  County. 

The  opinion  of   the  court  \,a5  delivored  ty 

Hoy;t,   J. — ^Defeudaiat  '.7.  E.  Petersoa  ciac9_Ais  negoti^.'ble  promissory 
note  to  jjrs.  Eliza  B.  Pool  or  ordor  for  -aie^sum  of  $liP70.     This  note 
tiie  payee's  old  to   fiie  plaintiif  for  a  Traluabie  con2  jderation.'^and' inSois- 
ed  t£e~^aas,  aon?.  tlHllvered  tt  'to   said  plainti  ff  before  its  maturity. 
Plaintiff  sov^t  in  thia  action  to  recover  upon  sajijaote  against  tjis 
maker.    ^r7~Fool7"^e  iias'&and,    intervened  in  the  £tLit4_and  alleged  that 
tlio  money   loaned  lor  '.duicli  i^e  note  \.as  given  •  as  conaaunity  property/ 
'^Ecrcggmea  tjiat_tg6~"tr^sfer  to  plaintiff  'jas  void,  and  thgt  he  had  no 
ti tlg^  upon  ■:./hich  he  could  recover  of   tlie  nal-Er.     H:©   court  "belov;  sus- 
tained~tiHE  coaTenti'dn'of  the  lausliand,  aid.  gave  ju6.gijnent  for  defendants. 


There  vas  no  evidence  tending  to  shov.-'bad  faith  on  the  part   of  plain- 
tiff, and  the  only  cii-cunstance  relied  upon  to  charge  him  v.lth  notice 
that  the  note  v.'a.s  claimed  "by  the  coraaunity  vas  the  fact  that   it  v/as  pay&. 
atle  to  a   w-oman  '.hom  ho  sipijoced  to  be  married.     Under  these  circumstances, 
\-ve  think  plaintiff  toot  cich  a  title   to  the  note  that  he   should  have  been 
allowed  to  maintain  his  action  against  tho  defendants.     The.  raalsar  prom- 
ised to  pay  ?IrG.  Eliza  E.  Pool,    or   crder;    ond   in  malciug  the  note  so  pay- 
able he  guaranteed,  to  ever;'"  person  taking  snch  note  in  good  faith,   iier 
ability  to  order  the   seme  paid   to   anotlsr — that  is,   to   indorse  it — and 
as   to'  everj'-  such  person  buying  in  good  faith  aix.  for  stalue  such  guaranty 
v.-as  conclusive.     Ihat  tlae  maimer  of  negotiable  paper  thus  guarantees   the 
capacity  of  the  iiayee  to  indorse  and    transfer  the  saiae  seems   to  arise 
from  the  uecessity  of  the  case,  and  Ihe  rule   is   tI-£refore  founded  upon 
reason.      It   is  li"33\d£e  abundantly  supported  by  aithority.     See  Daniel, 
Il9{&.   Inst.,  Sec,    93,  tuid  cases  there  cited.      IhiE  rule  Z-£.s  been  frequent- 
ly aFPlied  to  notes  aac'.e  to  and   transferred  by  infants.     See  Sec.   227  of 
autJioriiy  above  cited-.     Like'-lse  to  married  -i/otten  under  the  disabilities 
of  the  coranon  la".;.     See  sans  autliority.  Sec.   242.     In  tiie  case  of  a  mar- 
ried v/oman  under  the  disabilities   of   the  corinon  lav  such  a  note  v;as  the 
property  of  her  husband,  and  besides  she  had  absolutely  no  pover  to  malce 
a  contract  of  cny  ::ind,  ard  if.,   as  v;e  lx:.ve  seen,   the  i!)alzer  of  a  note  to 
such  s^erson  could  not  dispute   the  title   of  her  indorceo,    it  is  evident 
tliat  he   could  not  do  so  in  the  ccse  a.t  bar.     Under  our  lav/  the  \;ife   is 
fully  competent  to  ina^^e  a  peisonal  contract,  and  an  indorsee  of  siXJh  mar- 
ried T.x>man  sta.iids  in  a  nuc-h  stronger  position  than  under  the  common  la"/. 
.."-nj,"  other  rule  at.  to  the  passing  of  title  to  negotiable  paper  \.-ould  be 
contrary  to  the  universal  practice  of  tho  commercial  i.-orld  in  its  deal- 
ing tliere\/ith.     An  indorsee  too-- ;s   that  he  is  responsible  for  the  genuine- 
ness of  the  indorsement  luidei  ..-hicl-i  l:ie  holds,  and  he  .understands   that  in 
further   transferring  it  he  guara^ntees  that  the  first  indcrser  is   the  "pay- 
ee, and   that  the  indorseosnt   of  each  ^^ecial   indorsee  is  the  genuine  sig- 
nature of  the  person  so  named;  but  v.-e  thinl:  that  it  v;ould  v/orlr  a  great 


265. 

revolution  in  liDEijness  circlas,  and  cause  aja  luihoai'd  of  ijonic   therein, 
if  the  doctrina  v/as  once  estaljlisted  thiit,    in  addition  to  the  responsi- 
"bilitiec  abova  named,  he  also  assioraed  that  at  a,  guarantor  of  the  title 
and  capacity  to  sell  of  all  prior  indctrsers. 

V/e  do  not  lose  Eigjit   oi"  the  fact  that  all  property,  personal  as  v.ell 
as  real,   acquired  after  iiarriage,    ic  prima  facie   that  of  tio  corrmunity; 
hut  v;e  hold  that,  frcm  the  very  laiture  of  negotiahle  paper,   one  \;ho  roe.liBS 
it  payable  to  the  order  of  any  person  oannot  be  allo\/ed  to  say   to  a  bona 
fide  holder  that  the  authority  v/hich  he   in  terms  gave  to  aich  person  to 
ccrder  the  came  paid  to  another   ic  void.     V/e  think,  moreover,   tliat,  from 
tilic  nature  of  cvch  property,  money  and  negotiable  paper  bear  a  different 
relation  to   the  oomiQunity  tijan  other  property.     Hot  that  they  do  not  be- 
loag  to  the  couiunity,   as  betv;een   tlie  spouses  r^t  all  others  havir:g  full 
taiov.ledge  of  all  the  facts,  but  that,   as  between  the  ci:e  "x^o  is    in  pos- 
session thereof  axd.   one  dealing  in  good  faith  ard  fcr  value,   they   chouli 
be  treated  as  the  separate  property  of  such  possessor.     V/e  cannoi;  see 
thai  public  policy  •,'ould  be  subserved  by  holding  the  precumption  as   to 
ov-nership  of  ouch  pocEessor   to  be   less  than  that  of  anotiier  person  \fh.o 
is  in  the  possession  tliereof  -..ithout  any  semblance  of  title  except  such 
possession.     Yet  tie  books   are  full  of  cases  where  the  title  to  purchasers 
in  good  faith  of  sxch  property  has  been  sustained  although  it  appeared 
tiat  the   one  from  whom  title  v.r-s   received  had  none  except  possession. 
'Er^  possesijion  of  these  classes  of  property  raises  a  much  greater  pre- 
sumption of   title  tlian  the  possession  of  other  classes,  and  we  think  that 
the  rules  of  the  la"..'~merchan t  in  relation  thereto  iiave  not  been  changed 
"by  our  statute. 

Ihe  claim  of  intervenor  is  so  unconscionable  that  courts  -..ouli  not 
give  it   effect  unlets  the  statute  very  clearly  v/arrsated  his  contention. 
He  says    that  the   comiunity  liad  Ol,070;    that   it  loaned  it,    and  obtained 
the  note  in  coiestion:   that  it  delivered  said  note  to  plaintiff,  and  re- 
ceived thoreforiJljOVO,  and  is   thus  placed  in  e::actly  the  seme  position 
as  "before  the  note    -us  tal:enr   but   tl-a,t   it  is   still  entitled  to  recover 
of  the  ma]£er  of  the  note  another  -^1,070^    theieby,  -.Ithout  any  considera- 
tion haviug  passed  thei-efor,  c.oublirg  its  ^^.one^r,   2nd  this  at  the  errpense 
of  the  plaintiff,   ^ho^   thouvh  havi^i'  contributed  his.  ^1,070,   to  the  com- 
munity,   is   turned  out  of  C0':irt  -./ithout  a  cent.     Sie   judgrnen  t  musjt_be_re:::, 
versed,   end  th3  ccuse  reraanded  fa   lurthor  proceedings  in  accordance  '.dth 
^STs^ooinion.  , s=ii 

Anders,   G.   J.,   and  Bunbar,   Scott,    ascd  Ltiles,  TJ. ,   concur. 


A: 


266. 


In  the  Hatter  of  the  Sucrdianship  of  P.  P.  .ood, 
an   incompetent  Jsrson, 

(110  V,ash.  630,  ) 
1920/ 

Appeal   from  a  judgnent  of  the   Superior  court   for  Chelan  county, 
Grirashaw,  J.,   entered  June  28,   1919,  adjudging  a  person  to  be   incompetent 
and  appointing  a  gu;^rdian,  after  a  hearing  on  the  merits.     Reversed  as 
to  appointment   of  guardian. 

Parker,  J. — Annie   S.  Y>food  petitioned  the  su^rior  court  for   Chelan 
county  to  adjudge  her  husband,  ^^PTZlafiAZjagnt^lly   incompetent  and  for 
the  3ppc'in'tment'  £fjierf elf~a s  guardian  of  the  comriunity  property  ov.-nod 
by  them,  and  also_of  his  separate  property  if  there  be  any.     a  hearing'^ 
"uponTSe"  raeriT;s  resulted  in  a  judgrrent  nf  the  court  ad,iudging  I!r.  Wood 
to  be  imcompetent  and  appointing  V..   0.  Parr  guardian  of  their  conrounijty 
proper^,  and  also  of  his  separate  property ,   if  there  be  any   such  prop- 
erty.     j'jts,  wood  has  appealed  from  "the  judgrtent  in  so  far  as  it  ordered 
the  appointment  of  W-   0.  Parr"guardiant  "instos-d  of  herself  as  prayed  for; 
it  beIng~'coRt'ended~ inT her"  behal  f  that^  sh^  j^^fintltLBjLtjQ  is  app oint ed 
'guardian  of  the  prop'erTy_^s_a^ijatt_er  of  right,  and  that,  in  any  event, 
tgitj  court  abgsedTits  discretiCTij4^jrefaaing-±5,,appoiat_  her  as-^ _aujc35L g5ara,ia:- 

The  controlling  facts,  as  Vv-e  gather  them  from  the  record,  the  evid- 
ence upon  ?vhich  the  court  acted  all  being  herre,  are  not   seriously  in  dis- 
pute.    llT,   .,ood  is  about  eighty-three  years  old,  while  2irs.  Wood  i  3  ten 
years  y^oungey;     There  ii~ho  property  of  any  consequence  in  vvhich  he  has 
'ar^"xn^eTest;~otheT  than  the  community  property  owned  by  them  as  husband 
and  wife,  v/hich  consists   of  a  ranch  in  Chelan  county  of  the  value  of 
^25,000  or  more,  now  yielding^a^  rental  income.     :.Ir3.    Vood  has  for  sever- 
"al~yearr~laTgBly  borne  the  burden  of  managing  this  property,   collecting 
the  rents,  paying  the  taxes,   etc.     It  seems  plain  that   she  is  a  woman 
of  compai^t"ive lyT^'r^busine s s  ability,  economical,  and  conscientious. 
The  laanagSment  of  their  property~a.^s  not   call  for  any  eictraordinary  bus- 
iness ability.     It  is  true   she   is   somewhat  advanced  in  years,   but  it   is 
apparent   that  her  faculties  are  not   impaired  by  age  or  any  other  cause. 

Cur  statutes  relating  to  guardianship  of  pBOtert^"  Df  menJaUy  tp- 
competent  persons  do  not   specify  who  sht;.ll  be  entitled   tc    such  guardian- 
ship,   so  we  shall  assume   for  present  purposes  that  the  ciuestion  of  -..ho 
shall  be  guardian  in   such  cases   rests  in  the  discreticn  of  the  superior 
court.     Shis  discretion,  ho"uever,  must  be  e::erdised  in  the   light   of  the 
nature  of  the  property  to  be  man..ged  by  the  guardian,    the   relationship 
of  the  applicant   to  the  incompetent  person,  and  the   interest   the  applicant 
has,    if  any,  with  the  imcompetent  person  in  the  property.     Kow  to  appoint 
a  stranger  guardian  in  this  case  is  to  appoint  a  guardian  of  property  in 
which  Ilrs.    .ood  has  a  right  and  interest  eq^ual  with  Llr.  Wood.     'Jot  only 
that,    the  property  is  not  capable  of  being  partitioned  between  them  v.hile 
the  marital  relation  eiiists,    so  thf-t   she  can  acquire  the  independent  con- 
trol ower  her  portion  thereof.     Good  conscience  and  equity  plainly  dic^^t:; 


267. 

that  the  courts  should  be  very  slow  indeed  to  withhold  from  th»  wife,   in 
a  case  of  this  Iriud,  cont.vol  of  conraunity  property.     Were   this  a  question 
of  administration   Tol]  ow.lng  the  death   of  It",    ..ood,  his  wife*E  ri-^ht  to 
aiilminister  upon  this  pvoporty  would  exist  as  a  rc^jtter  of  legal  ri^ht, 
whether  the  property  be  corrmnity  or  sf;parat.e  property,   save  for  sor.e 
plain  disqualification  on  her  part,  which  clearly  does  not  appear  here,. 
Laws  of  1917,  pp.   654«    Sections  49,61.     These   sections,    of  course,  are 
not   controllins  here;  but   in  view  of  the  fact  that  the   situations  are 
somewhat  analogous,  we  thing  they  are  quite  persuasive   of  the  equitable 
right  of  Mrs.  T.ood  to  administer  this   giiardianship,   which  the  courts   should 
be  reluctant  to  deny.     Those  close  to   the  incompetent  by  ties  of  marriage 
or  blood  have  always  been  favored  by  the  courts  u?  suitable  and  proper 
guard;'.ans   in  such  ca^es.       -oerner,  i^merican  Law  of  G^cardianship,    s.   133, 
Manifestly  this  rule,  generally  applied  where  the  corrjminity  property  sys- 
tem is  vmknown,  has  even  more  cogent  rea^on^  for  its  application  under 
our  community  property  laws,      in  the  early  decision  in  Brotton  v.   Langert, 
1  "..ash.   73,  79,   23  ?ac.   688,  Judge  Lunbar,    speaking  for  the  coul-t,    said: 

"So  far  the  evident   object   of  the   l5W  is,    to  plr.ce  husband  and  wife 
on  an  equal   footing  in  relation  to  property  matters.     Section  2409  is  as 
follows:      'Property  not  aoq^■lired  or  owned,   as  proscribed  in  Sections  2400 
and  2408,  acquired  after  marriage  by  either  hvisbpnd  or  wife,   or  both,    is 
community  property     The  husband  shall  have  the  management  and  control   of 
community  personal  property,  with  a  liks  power  of  d5.spcsition  as  he  has 
of  his  separate  property,   except  he   shall  not  devise  by  will  more  than  one- 
half  Wiereof.'     Shis  section  discriminates  in  favor   of  one  spouse   only   so 
far  as  is  actually  necessary  for  the  transaction  of  ordinary  business," 

While  this  observation  related  to  the  iranagsment  of  community  person- 
al property,   it  manifestly  is  equally  applicable  to  community  real  prop- 
erty,  since,  apart  from  the  power  of  disposition  of  real  property,   the  hus- 
band's management  &nd  control  of  it   is,   and  always  has  been,   the   sane  as 
of  community  personal  property.     Rem.   Code^   Sections  5917,   5918.     V/e  are 
of  the  opinion  that   the  trial  court,   even  conneding  that  the  appointment 
of  a  guardian  is  a  matter  within  its  discretion,  erred  in  refusing  to 
appoint  Annie   S,  '.Vood  as  prayed  for.     That  is,  that  its  refusal  to  appoint 
her,  under  the  circumstances  as  here   shownjj;  amounted  to  an  abuse  of  dis- 
cretion. 

Some  contention  is  mj-de  in  behalf  of  -kcs.  V.ood  that  the  trial   court 
erred  in  refusing  to  entert.in  her  application  for  an  order   of  sale   of 
the   ranch,    she  having  petitioned  therefor  and  sought   to  have  the  matter 
heard  at  the  s.-rae  time  the  question  of  -"ir.    /ood's  incompetency  and  appoint- 
ment   of  a  guardian- for  the  property  was  heard.      Since   it    seems  that  the 
Sale  of  real  property  of  i  ward,  whether  a  minor  or  an  incompetent  person 
has  generrlly  been  held  t  o  be  a  .natter  of  statute  only    ('.oerner,  American 
Law  of  Guardianship,    Ee-c.   148),   and  since   our  statute  relating  to   sales 
of  real  property  by  guardians  provides   for  procedure  looking  to  that  end 
by  the   filing  of  a  petition  by  the  guardian  amd  asking  for  authority  to 
make  such  sale,    (Laws  of  1917,   p.   703,   Sec.   212),  we  think  the  trial  court 
did  not   err  in  refusing  tc  entertain  the  question  of  a  sale   of  the  ranch 
with  the  question  of  Ilr.  '..ood's   incompetency  and  the  gppoint.ient   of  a 
guardian  for  the  property. 


268. 


The  joigi^ent  i:.  rer/ei  ceu  lu  ro  I'^r  £.c  it  orc.ari-  t'-j.3  cpoointment  Ox-vAj»lt( 
■..'.  0.  Parr  gv.c".: caca,  ::ja:''.  tixe  cac3  ic  verrx.  i£.e(f.  to  tiie  aii:«rior  court  for  ^ 
TT^ri^ther  proceediu^'c  iu  confor:iiit;'-  \.lth   thi;.    OjPiuioa. 

Mrc.  "./ood  i..  eatitlei  to  liar  coctc  irjcuivecL  iu  fiiic  court,  pay£."bl 3 
out  Of  the  ^fuarciiaisliip  ectate* 

Holcoml),  C.  J,,   Toli'iTc.il,  llitchell,    cixL  lliin,   JJ,,  ccncur. 


^>' 


269. 


P.  E.  HilMIOHD    EITPOHDMT,  v.  V;M,  K.   JACKS OE  et  cl., 
Apirellaiits,   EPAEIC  3.    (EEinSI  et  ul.,    Garnisliee 
Defendajits. 

(89  Wasli.    510  1916  J 

Api::eal  from  a  judgitent  of  the  superior  court  for  Kias  county,  rrater^ 
J,,    entered  Cc toter  29,    1914,   upon  findings  in  faYor_of_thej3laint  if  f , 
in  an  action  on  contract,  triad  to  the   court.     Reversed. 

Fullerton,    J. — The  appellant  Lulu  B.  Jackson,   a  married  woman  liv- 
ing v/ith  hor  hus'band,  \/a5~i5jured""v^iIe^^^gitirg  from  a  street  ^ail^^~^y 
oar  operated,  b;- Tae'receivers"'oF  the  Seattle,  E:entoii  &  Southern  Railway^ 
Company.     She  c one e i v ed^thaj_  1'^ r  in,1  uiy-Jgas-^c cvseA ^by,  the  negligent  op- 
eration  of  the  car  axL    that~she^ vas  enjbitled_ to  recover  in  damages  for 

ElCh    injuries.      Jo   that   R'^id    r,hP    pnipln^rfirl    W-ifi    foKpn-nrl  pnt  ^  ■TTrmmnnd ,    ;ffl 
attorney  at  law,    to  "tirosecute  Tier  claim  therefor,   promising  to  pay  him 
for  his  services  a  certain  pei-ceatage  of  the  amount  recovered.      The  con- 
tract was  in  T.aitiijg,    aod  was  e::ecuted  "by  the  appellsmt  as  her  sepai^ate 
contractTTier  husband  not  joining  therein.      Hie  re&ponde}ii;Jjnmediately 
CTtHTed~Tipuir"tji5"  performaace  o?  the  contx-act,  first  petitioning  the 
court  for  leave  to  sue  the  receivers,   an?,  failing  in  that,   sought   a  set- 
tlement v.'ith  the  receivers,   sjid  succeeded  in  obtaining  an  offer  from 
them  to  pay  the  sum  of   si::  hundred  dollars   in  satisfaction  of    tiae  claim. 

\7hile   the  foregoing  negotiations  \."ere   in  progress,   the   appellant 
Wil liam~Xr~JacK£0 n ,    Sne  nusband  of  the  other  appellant,   employed  the  lav; 
I'lmi  uf  Green  c:  unester  to  represent  himself  aM  the  cbramaal]^ of _him- 
seif'~ancr\;ife   in  the  prosecution  of  the  claim  against  the  receivers. 
I'jiis  emplo^mient   ,-ras  also  evidencecT^y  a  \.a'itirg,  v,hich  \.'aE  practicallj^  in 
the   same  tenns   as  the  contract  made  "by  the  -.afe  -,dth  the  respondent. 
-If  ter_  this   contract  •'"as  entered  into,  the  -.-jfe  notified  the  respondent   ^  ^■\-^ 

ther eof_^;_letter ,  dictated  It-j  the  firm  of   Green  d  Chester,  In  whTch^she 

told~him  to  talce  no  ftn-thp.r  action  ~Ath  reference  to  th e  c la im;   saying 
iturther,   "As  my  h'y.B'bzx^.  'was  not  a  Pai-t3''  to  the-  agreement  you  had  me  sign,    ■ 
I  do  not  feel  hound  Vf  the  agreement,  and  request  th£,t  you  return  the 
same  to  me.  ' 

Hie  fim__of  atto-ne-^s  employed  hv  the  husband  sjgLCjeeded Jl£L, se t tli ng 
the  claim  vath  tLia   receivers  for  the  sum  of  $1,000.     Ihe  respondent 
tioereupon  brouglit  the  present  c..ction  a^'ainst  the  appellants,  basing  his 
Jause  ^f    action  upon  the  contract  E,i:-neci.  ti?  tne  wife.     Issxse  was  Ta'.cen 
Sn~tti¥  complaint  and  a  tiisl  was  had  before   the   court  sitting  without  a 

jury.      The  co-JC't  fouzd  the  contract^  valid,   assessed  the  amount  of  the 

regpo^d^TfirTecovery  drt]^^I75^_jum  .B^teged  judgment   in  his  _fayor  for  tliat 
Bum.     Sis  appeal  ToXIovid^  '      ' 

The  sole  question  presented  is  whether  a  imrried  --omen  living  with  ^>uti 
her  husband,  may  mslzo   a  valid  contract  i.lth  an  attome;^  to  -prosecute  an     "P" 
sc^tloa-ji£jL4iijA^!;j£gg^  one  bv  whose  negligence   she  has  s uf fared ^_per- 

sonal  injury. 


270. 

Rem.  c-j  Bal.  OocLe,   Sec.    131    [i .   C.   81  Sec.   11),  provides  that,  \hen  a 
married  \«3meji   is   e  party,  her  huGbaiid  muct  be  joined  vdth  her,   except 
(1)  vAien  tlie   action  coixerns  her  separate  property;    (2)  -.hen  the  action 
is  between  herself  snd  Zicr  husband;  and    (S)  xSaen  she  is  living  separate 
and  apart  from  her  husband.      It  IXirther  provides    (Id.,  Sec.   182;  P.   C. 
81  Sec.    13)   that  husband  and  wife  may  join  in  all  causes  arising  from 
injuries  to  the  person  or  character  of  eitlier  or  both  of  them,    or  from 
injuries  to  tlie  property  of  either  or  both  of   them,    or  out   of  an;;,'  con- 
tract  in  favor  of  either   or  both  of  them.     Construing  these  sections,  -..-g 
Iiave  repeatedly  held  that  the   husband   is  a  necessary  party  to  all  actions 
a:i.'iEin2  because  of  personal  injuries   to  the  vafe,    if  the  parties  v/ere 
living'  tO|2;ether  as  husband  and  \/ife  at  the   time  tiae   injury  was  recoived. 
Schneider  v.  Eiber^ei-,   76  Wash.   504,   136  Pac .  701,,   aif-  cases   there  col- 
lected.    Indeed,   ou:.-  holcdnc  has  been  tliat  the  Iiusband  ^;as  the    only  nec- 
essary party  to   such  an  action.      Uiis  on  the  principle  that  the  claiin  of 
damages  for  Cis   injic-)-  ".■•■as  co/anunity  personal  property  of  the   spouses, 
aad,   sinne  the  statute    (Reia.  c",  Bal.  Ca.e,  5'ec.    5917;  P.   C.   95  Sec.  27), 
vests  in  the  husband  larhils  livi:^;^  v/ith  his   ..ire  the  laanagement  snd  con- 
ti'ol  of   such  property,  he  li^.s  pov^er  to  deal  vlui  it  as  if  it  './ere  hie   sepj- 
s;rate  property,   -.hich  includes  'cIe  ri^ii  to  maintain  actions  concerning 
it,   the  v'ife  hexn^'  only  a  proper  pa;:*ty  to  such  actions.     Dillon  v.  Jjillon, 
li  V/ash.   594,  43  -'ac.   624-   Hav/;ins  v.  Front  Street  Gable  R.  Co.,   3  'Wash-- 
592,   28  Pac.  1021,   ^8  .'mu  It,   7^,    16  L.  R»  A.   808;   Kaxcker  v,  V/oolery, 
10  ¥aEh.  484,   S9  2ac.  100-,  ];atthev;s  v.  Spoisaie,   50  Y/ash.   107,    95  Pac,  627; 
Schneider  v.  Biber^er;   supra. 

Prom  the  loieioini   it  follows,  \;e  thin.c,    tloat  the  \rlfe  cannot  maj:e 
a  val  id  contract    ith  an  e.ttoin.e;''  to  prosecute  an  action  for  personal 
injuries  althoc^'h  Eufferec.  by  herself.     Since  the  Ijusband  alone  can  main- 
tain such  an  action,   it  iriUEt  follo"'  tlu-.t  Is  has   tlie  ri3ht  to  liave  a  voice 
in  anj'-  contract   tliat  affects   the   condition  upon  ■..h.ich  tlie  action  is   to 
be  iaaintained.      To  hold  other^;ise   is    to  hold  that   the  liusband's  manage- 
ment and  control  of  t'x&  c  onaunity  personaJ.  propert}''  is  not  absolute  as 
tiis  statute  precapposes,  but  is  subject  to  fauch  contracts  as  the   other- 
spouse  ma-Y  choose  to  raaire  concerning  it.      Hiis  .   v/e  tliinh,    is  not   tlie 
-leanii-^g  of    fee  statute. 

Our   attention  it  called  to   a  number  of  cases  \.here  this    court  has 
recognized  contracts  concerning  the    coiaaunity  property  entered  into  by 
the  \7ife  as  obligator^  upon  tlie  comnvmit^r,  but  in  each  of  them  we   fiiinV: 
there  v.'ill  be  louuc'-  so.x  element  of  ratif ice,tion  or  acc^uiescence  on  the 
;^rt  of   the  husband  which  estop^-ed  him  from  gainsaying  tlie  contract. 
Buch  \;as  the  fact  in  the  case  of  Tilliajas  v.   Beebe,   79  'ash.  135,    139 
Pac.  867,   a,lthougIi  the  court  rested  the  decision,    in  part  at  least,   on 
tije  ,:^round  that   the  wife   could  enter  into  a  valid  contract  \/ith  relation 
to  the  coiamunity  property;    citing  and  rel^'ing  upon  Hem.   u  Bal.  Code,  Seo. 
5927   (P-   C.    95  Lee.   21).     But    diis  section  of   the  statute,  as  we  had 
thAi'etofore  unifoimly  construed  it,  relates  to  the  separate  property  of 
a  :jiarried  './oacji,    ^iviii^  I^er  pov;3r  to  contract  -..ath  refsrence  thereto  as 
if  EliQ  '.;ere  unjaarried,  but  not  po'.'er  to   contract  '..1th  reference   to  coia- 
luunity  property.     •Eiis  po'.er  ox  contract  had  been  theretofore,   in  tlie 
same  en:.ctment,    e:;clusivelv  vested  in  the  husba^^id.     jJieebm-ger  v.   Cald- 
well,   5^' ash.   759,   £2  Ic.Cb   752;  ilain  v.  Scholl,   20  "..ash,  201,   54  Pao» 
1125;  Hester  v.  itine,   46  Hc-sh.  469,   90  Pac.   594;   United  States  Fid,  &, 


271 

Guar.   COo  V.  Lee,.    58  '.fesh.   16,   107  -ac.  870.     Ovx  e:;i)ression  iu  the  casa 
aont ioiied  muicte  ro^ardad  as  unfortunate,   ratler   tliaii  as  an  authorita- 
tive deternination  of  tliB  qUGstiou  involved. 

The  respondent  further  argues   that  the  evidence  in  the  present  case 
shows  such  an  acquiescence   in  tlie  contract  ty  the  iiushand  as   to  estop 
him  from  repudiati:\'V  the  contract.     T/o  ha\'e  eriannned  the   record  v/ith 
this  thought   in  mind  and  t?iinl:  it  dees  not  ju&tify  tie  conclusion.     It 
is    shovm  that  the;  lUTShcnd  l:ad  loiowledge  of  his  wife's  action  at  the   t.i;iie 
he  entered  into  the  contract  ivilh  Crjester  «  Green,  hut  v.e  f  5  mi  nothing 
to  show  that  he   in  any  canner  recognized  or  acquiesced  in  the  contract 
after  it  came  to  his  Imovdedge. 


The  judgment  it  reversed,  and  tie  cause  remanded  with  in5trT:rvtions 
to  enter  judgment  in  favor  of  tie  appellants,  defendants  "below. 

V^  c.^.,—    V  -^  ^  i 


llorris,   C,   J.,  Ellis,   exc-.  Llain,   JJ.,   concur. 


272. 


SECKtS  0,  lEKCIE  COl^MTI,  Sespondent,   v. 
AUHA.  iiCI&BI,  Appellant. 

(ill      vv-S'  *•  ^  ■       "*-  ^  '  ) 

17  Dec.   156,    1921. 

Appeal  fron  a  judgment  of  the  cuperior  court  for  ICing  county,  Smith., 
J.,   entered  ilovemlDer  13,    ]920,  upon  tte.  %'-ei-dict  of  a  jury  rend.ered  in, 
favor  of  the  plaintiff,   in  aa  action  on  contract.     Affirmed. 

llitchell,   ,T.->-r;iis   is  a  suit  "by  tls  C-eor^^e  C.  Leiccke  Company,   a^qr- 
pox-ation,    to  recover  on  a  contract,  si:":aed  ajid  delivered— tfl_  it  Tjy  Anna 
ITordty,  for  a  cointiission  on  the  sale  of  real  estate,     j'rora  a  verdict  aiid 
^ud^enTTTor   ttle'^^lalu.tlXf^   tlxe-dgfend^t^Iaas^oagealGd . 

ghe  real  properts?-  'jolonged  to  the   cOiTmunity  consistiEe   of  s^ppellaixt 
aJd  her  husogoid..  P.  P.  ITordliy,-^    tIip.    rflF-,?ondent  fnurd  a  purchaser  \Aio,^  ' 
icon  the  payment  of  ."^500  ecj-nest  nonejr,  entered  into  a  v.Titton  contract 
for  tlie  purciiase~of  ~t"'-6  •iOTrperty7~  It  v/as  signed  P.  ?o   Ijordty,    oxholOT^-^ 
John  Ec  Ryan,   aixL  cJso  1):/  the  purchaser ,  'but\/as~^6t  signed  by  the.  aj)- 
pei-larrtn — -Under  th6  sam.9_aate,  the  appellant~"e^cutedr'aM~'del'iTerea_j;o 
tire~respondent  the  contract  on  v/hich  the  suit  is   "brought.     Tlie  abstract 
of~tTtle  and  a  deed  of  conveyance,  proposed  some  days  later,  were  iipon 
eccamination  found  to  be   satisfactory,  but  the  nighlfc  before  they  were  to 
be  passed  and  delivered  and  th&  remainder  of  the  consideration  paid  by 
the  pnvr-.ina «^p-r  _  T- ,   ff .   :in:-r'iny  fl  i  pf  .      Ihs  delay  in  cj-jE^lgtJ  ^3.  the  deal  caused 
by  his  aeath  resulted  in  chcoi^ing  the  full  details  of  the  purchaser_^E 
contract  by  a  formal  cancellation  of  it  aif.   in  plotting  him  iu^ossessiCT. 
ofthe  propert:^^,  'vith  the_jcXQaJiJrff' erstrni^  niK,-hQi:Gver,   that  as   soon  as 
proper   steps  v;ere  tal33n  in  the  Probate  dep.'^.rtment  of  the   oiperior  court, 
the  transfer  \>oulc.  be  made  for  the  consideration  origiaslly  fined;^  and 
for   that  purpose   Gie  party  viEo  by^vray   of"  loan  to  the  purchaser  vas   to 
supply  the   lar^'ar  pa:^'t  of  the  purchase  price  held  the  money  until  some 
%7eete   later,   after  proper  court  proceedings  had  been  tali:e:a  to  malte   the 
title  sood,  he  ftirniclx:d  it  to  the  purchaser,   '.tio   in  tiu-n  paid   it,    to- 
gether with  the  otiier  considerations  for  the  deed  of  conve;"ance. 

By  several  assignments  of  error  it    is  contended  tliat  the   contract 
of  the  appellaat  to  pay  a  coirmissicn  v/as  terraiiia-ced  "by  the  ca:ic3llatidny,_^^ 

^_the  eai-aest  mone-f  contract,  beca'ase   oy  th&_J:erms "of  her  contract^he . 

agreed  to  pay  the   GO.-iUission  if  the  purchaser  completed  the  purchase  ^ 

•'under  the  teri3S~"ajIt~CTgiliblunL;^^ot_tbe  eai'iiest  moaey"~c  on  tract.     TM  ar- 
gument   is    tliet  the  cancellation  of~l; lie  earnest  money  contract  deprived 
the  contract  sued  on  of  some   of   its  essential  teims.     ''e  tiunlr  it  does 
not  liave  that  effect.      Tlie  contract  sued  on,   since  it  refers  to  the  other, 
is   to  be  construed  ac   if  th2,t   otter   to  that  e::tent  •-as   incorporated  in  it, 
and  the  cancellation  of  the  other,  being  between  entirely  different  part- 
ies,  in  no  W3rj  depreciates  its  value.      The  one  that  was  cancelled  is   in 
erristence  and  is   in  evidence  in  this  aase.     Hor  ws.s   it  cancelled  until 
tlie  purchaser  \iz.s  put  in  possession  of  the  px-upertj' ~v,ath  the  understand- 
ing that  he  v-as  to  complete  the   contract  as  soon  as   £!-£   title  to  tlie  prop- 
erty could  be  perfected  throxagh  the  court;  uid  there   is   abundant  evidence. 


273. 

Gio^sh  disputed  ty  the  api-ella-iit,  to  have  satisfied  the  jury,   as   it  evident 
ly  wac  satisfied,   that  the  coatraot  v/as  fully  completed  "by  the  purchaser- 
"by  a  substantial  compliaase  vdth  the  terns,   of  the  cOiitract  as  v/ritten  and 
tJiereafter  orally  agreed,  pricr  to  the  coinmeacement  of  this  suit.     The 
saine  reasons  ansv;Gr  the  argument  of  the   appellant  t]Tr-t  the  contract  in 
suit,   to  the  extent  it  refers   to   the   cancelled  contract,   is  defective 
uader  the  statute  of  frauds. 

Under  another  collection  of  assisnxnents   of  error   it  is  contended  the' 
ai)pellant    is  not    individually  liable  for  the  reason  that  the  real  estate 
v/as  coriimunitj,'  property  and  ti-^at  the  respondent  vas  dealing  with   the  com~ 
launity   an:l  not  vAth  Ilrs.   iiord.hy.     But   she  r:jade  the  contract.     All  former 
j,s\vs  Y/hich  iirfposed  civil  disahilities  upon  a  vafe  v^ich  vrere  not  recosr 
nized  as  egistii^-  against  _the_h'"r.'bflnd  Kive  "heeiT  fiboT ished  '^v~statute    (Rem. 
'Code',  Lee.    5926)   and  rBT  cmtracts  and  liabilities  may  he   enforced   (Rem. 
Code,  Sec.   by<i7J .  " 

ne:ct  it  is  contsiided  there  v/as  no  perfoimance  of  the  contract.      The 
purchasei'  procured  by  tlB   appellant  concluded  the  pujrchase  of  the  property 
upon  terms  entirely  satisfactory  to  the  seller,  v/lio  made  sons  changes  by 
way  of  e::actin3  a  larger  amount   of  cash  than  mentioned  in  the  original 
written  contract,   aid  a  consec;uent  change  in  the  amount  of  property  and 
securities  given  for  the  remainder  of  the   total  purchase  price. 

Lastly,   it  is  contended  the  court  failed  to J^ngtruc tjthe    juiy  on  the 
meaning^^f^'Tpreponcerance  oftiie   evidence"  aoid  ''credibilitj-  of   the  \7it^-^ 
neEses-.''     Tlie  appellant  requested  no  such  instructions,  but  the  record 
before  uc  sho'.7S  tliat  the  court  did  give  pr-oper  instx'uctions   on  both  of 
tZiose  matters » 

Judgment  affirmed.  \      c>-<— -      \    \ 

Parlcer,   C    J.,  liain,   Bridg'es,   cJid  Tolmaii;    JJ.,  concur. 


\ 


274, 


ELIZAaETH  11.    BOUroS,  Respondent,   v.  I'lIEITIE  E.    G/iL- 
BBAIOH,   as  IL:ecutri::  of   tho  Eotate  of  j\RCHr2 
R.   Q.'-LBR.Viai,  Appellant. 

(17  Dec.   161.     1921.) 

Appeal  from  a  judgrrent  of  tlie  superior  court  for  Spoteaae  cotmty, 
Oswald,  J.,   entered  Lecemlier  SI,    1920,  upon  the  verdict  of  a  jury  render- 
ed in  favor  of  the  plaintiff,    in  an  action  on  contract.     Affirmed. 

Hitchell,   J. — 2?he  respondent  'broi:^^   this  action  to  recovet  for  per- 
sonal  services  rendered'~to  the  appellant  from  h ^jtSlj e r~r57;T90gr,  /^o_ITov^ 
"Member,    1916.     The  trial  l-esultea  in  a  verdict  and  judgn:ent  for   the  re- 
sp0j3jdeat~in  the  sum  of  ^4,290.30,   asainst  only  Minnie  E.   Galbraith  in- 
divi(?iially,   from  v/hich  she  has  sgppealed. 

Appellant   is   thesurvivin,^' wife   of  .Irchie  R.   Gal'br^i^^h,   der.fia.Red. 
Respondeat  i'S    the  davghtex-  of  Archie  R.   Galtraith,  deceased,   ty  a  former 
'W.l'e.     In  het-  Orisinai  cOi,ipiain.r  agarnst   tto"'~appeTlant  as  sole  defendaiit , 
re£".3ondcat  alle.'^ed   uiat,  a"bQut  September,   1904,    "at  the  request  of  jbhe 
uefendant  aaid  Archie  R.   GalTjraith, "  she  •, /priced  upon  their  ranch,   and  con- 
"tinued''to  do  so  until  about  iJovmtoer_l,   1916,  itthat_t^_Y.prl;  consisted 
of  c oolong  for   taie  family  anr!   farm  handE^,_houE^worIc,    includi ng" v©.sh iug 
aixL  ironin:^,  raTlkins  cows,   feeding  pigs  and  chickens,  anci.  v/ork  in  the 
harvest  fields,  pScIcing  fruit,   and  aiding;  in  clearir^  land;    "that  shortly 
after  plaintiff  began  v.orl;,   defendant  and  the  deceased^  Gglbraith  promised 
the  plaint  if  1    if  she   -.oula  continue  to  v/ork  .     .     .   that   fitiey  would  pay 
I^r~v/ell  ^ut   of  the  proceeds  of  the  sale   of  the  ranch  wlen  sych  sale 
"sRoald  be  riade,  and_tto:LS-ai4--r^a£h„\^s_,SQl^'fo?  $25^000  in  Augixt,  "1918j_'' 
^at  plaantgf  has 'not  been  jaid,   and  that^  -QE  per  day  is  reasonable  for 
.Jborjservices .     By  leave  of  court^    Sie  'cont>iaint  v/as  amended  by  making 
Ill's.    G-albraith,   in  her  capacity  as  e::ecutri::   of  lier  deceased  husband's 
estate,  an.  additional  part-'-  defendant.     In  the  amended  complaint;   after 
alleging  as  fojmerly  that  she  --orked  for  then  at  their  request,    and  de- 
scribir^'  the  \/ork  performed,   she   t:::en  alleged,    ai:nong  other  things: 

"2hat  shortly  after  plaintiff  began  said  v/ork,  and  on  or  about  the 
15th  day  of  Septanber,   1904,    in  Ibpol^sne  county-,  "ashington,   the  defend- 
ant, Ilinnie  E.    Gelbraith  and  her  then  husband ^    the   said  Archie  R.    Gal- 
braith,   deceased,   entered  into  a  contract  and  agreement  -.vith  plaintiff 
by   the  tenus  and  conditions   of   ./Iiich  the  plaintiff  v.^s  to  do  and  perform 
and  render  sei-vices   to  them  end   to  be  paid  for  said  v;ork  the  reasonable 
value  thereof;  am?,  at  said  time  the   said  Ilinnie  E,   (Jalbraith,   on  her  own 
behalf  and  in  her  o\/n  capacity  as  an  individual  and  for  the  purpose  of 
inducing  and  persuading  tliis  claimant  to  enter  into   this  agreement,  prom- 
ised and  agreed   that  she,    the  said  Minnie  E-    Galbraith,  would  individual- 
ly pay  and  cause  to  be  paid  to  this  plaintiff  the  reasonable  Tjorth  and 
value  of  the  \/ork  and  services   to  be  rendered,   \vhich  said  payment  was  to 
be  made  at  the  tirae  the  said  Uinnie  E,   (Jalbraith  and  Archie  R.    Galbraith, 
deceased,   should  sell  and  convey,   or  dispose  of  their  said  ranch;   and 
that  on  or  about  Aug-ust  15th.    1918,   said  ranch  was  sold  by  said  Galbraiths." 

THiile  there  is  a  conflict  in  the  testimony,    there  is  ample  credible 


275. 

evidence  to   suivort  all  of  the  material  alle^'ations  of  tlia  amende-:  com- 
plaiut   that  '..'ere  coutroverted  by  the  ansv/er.     Respondeat   testified,   ty 
questions  and  ans\/erG,   as  folio- /s: 

"Q.     ^";hat,    if  ari7,   conversation  did  you  hcve  ^ith  the  defendrnt  Mrs. 
Galbraith  in  the  fall  of  1904,    the  fall  or  summer  of  1904,  dovaa  on  Gollese 
avenue  v/ith  regard  to  your  going  out  on  their  ranch?     A.     She  wanted  me 
to  go  out  and  do   the  housework.      Q,     V/hat  did  she  say  about  pay.     A.     Ihat 
I  would  get  my  money  when  the  ranch  v.-as   sold.      ':l,     Lid  era   s^.y  v/lio  v;ould 
pay  you?     A.     She  would  pay  me.     ti.     You  state  to  the  jury  whether  or  not 
you  v/ent  out   to   tlie  ranch  pursuant  to   that  conversation.     A.     I  did." 

Furthennore,   two  other  witnesses,    v/holly  disinterested,    testified 
t!hat  once  to  each  of   them  during  the  tv/elve  years,    in  tlie  absence  of  the 
respondent,   the  appellant  stated  that  slie  was  paying  -./ages  to  the  respond- 
ent.    The  respondent  testified,  and  was  corroborated,    to  her  performing 
the  services  and  labor  as  alleged  during-  the  \;hole  of   the   tv/elve  years, 
and  admittedly  she  had  bean  paid  nothing  for  her   services,   for  the  defense 
v.'as   that  slie  './as  a  member  of  the  family,    treated  as  sudli,  aid.   tliat  all  her 
services  were  gratuitous. 

Assiggments  of   error  1  aad  5  are   that   the  court  should  have  sustain- 
ed a  demurrer  to  the  complaint  and  an  objection  to  the  intrcduction  of 
evidence  upon  the  gx^ound  that  no   cauce  of  action  v/as   alleged.      !Ihe  con- 
tention is  tliat   the  allegations    show  tliat   the  obligation  charged  v/as  a  com- 
munity de^t  for  which  the  vafe  is  not  individuall;'  liable.     That  rule  does 
not    apply  in  cases  such  as   tiis ,    ^Section  5927._Pi.era.   Code    (P.O.  Sec.   1450), 
provides:      "Contracts  mr;y  be  r;iade  h-j  a.  -.a-Fr,    -rnr^    1  i -.bi  1  i  tinr,    innurrnr'.,   a  nd 
tlie__same  may  be  enf arced  by  or  against  hf^v  tn  t>p.  nai-y.  ^  -tRnt  --.t!    in  t-.hft_ 
same  manner  as  if  she  were  tmiraril  ed." 


Assignments  2  and.  3  are  predicated  on  tlio  r&fus-.l  of  the  co-art  to 
strike,    cjrf.  to  sue t   in  -,  demurrer  to,    the  ra-nended  complaint.     Ihe  argument 
is   thr.t,   as   the  original  oomplaint  did  not  st-.te  '.  cause  of   -jction,   t}:ere 
w;,s  nothing  to  -ment.      In  our  opinion,   there  is   no  merit  in  the  point. 

-ssigument  4  is    that  :.p  ell:nt's  motion  for  judgment  on  the  pleadings 
should  not  h:.ve  been  denied.     Because  there  \/r.E  no  denial  of  an  alleged 
affiimative  defense  setting  up  the  st.:.tute  of  frauds,   it   is   ojrgued  that 
"the  sole     uestion  involved  in  the  notion  --saiCer  discussion  is  ^7het2ler   tiie 
promise,    as  alleged,    is    .Ithin  the  st-.tuta  of   frauds."     That  is,   it   is   con- 
tended that   the  allegations  in  the  amende^-  coni^olaint,  viz.: 

"And  at   said    time  the   said  Liinnie  E.   Galbraith  on  her  own  hehalf  raid 
in  her  o\ra  capacity  as   _^  individual,    _ixL  for  the  purpose  of  inducing'  and 
persuading  this  claim-nt  to   enter    into  this  agreement,  promised  .nnd  agreed 
that   she,    the  said  Minnie  E.   Galbr_-.ith,   \;ould  pay  and  cause   to  be  paid  to 
this  plaintiff  the  reasonable    /orth-  and  value  of  tl:e  work  and  services  to 
be  rend-ered," 

is  a  collater-il  -nd  not  -n  original  pror.iise,  particularly  because  of   the 
words   tlx-.t    alie   "would  pay  or  cause  to  be  paid."     The   langxtage  referred  to 
is   entitled  to  no  construction  inconsistent  -./ith  the  ch.:rg3  tliat  Ilrs.  Gal- 
braith  mcde  -  direct  :.nd  positive   contr-.ct  and  promise  to  pay,   not    tie 
debt  of  riiothar,  but  her  a.vu  debt. 


276. 

Assignment  6   is  th-t  the  refusal  to  strike  certc.in  testimony  of  the 
res-^ondent   to    the  effect  thc.t  Mrs.   Galtrr.ith,    in  the-  full  or  surfer  of 
1904     wonted  her  to  go  out   to   the    f:xn  2nd  do  house^;ork,    th::t   she  v;ould 
poy  -i-^en  tlae  farm  v;as   sold,   and.   th-.t   she  did  so  out   to  co.™ence  v;orlc  m 
September,    1904,  v;as  vj^e judicial  error.     The  arGument  is   that  the  testi- 
mony is  inconsistent  v;ith  the  r.llegr.tion  that,   after  she  hegrJi  uork,   the 
ap:,3ellant  and  her  then  hushnzid  agreed  to  pay  her   for  her   se  1-1:1  ces  ^^iien 
they  sold  the  ranch.     The   testimony  moved  agrinst  went   in  hy  questions 
and  oxLSv/ers,    v/Lthout  any  objection  on  the  part  of  the  appellrJit;    and  tur- 
thermore,   the  terms  ajid  conditions  of  the  agreement,   as   testified  to  ana 
pursuciit  to  v;hich  the  services  v/ere  rendered,  v/ere   identical  v.lth  the  al- 
legations of    the  complaint  so  far  as  Mrs.   Galhraith  is  concerne<?.. 

Assignment  7   is    that  the  court  errecl  in  denying  a  motion  to   strike 
tlie   testiraony  of  respondent  regarding    Qie  reasonable  value  of  her  own  ser- 
vices.    V/ithout   setting  out  that  •,hich  the  record   shows  concerning  her 
means  of  Icnov.'ledge,    md  v.^thout  discussing  the  competency  of  her  testiinony, 
v;e  vxe   convinced  the  motion  to   strike  was  properly  denied.     Ho  prejudice 
could  arise  thereon  any./ay,   for  two  disinterested  qualified  iTitnesses  fizz- 
ed the  same  value  as   that   testified  to  by  the  respondent,   which  in  the 
total   e::ceeds   the  craount    of  the  verdict  and  judguent. 

Assignments  8  and  9  are  th:,t  the  court  errecl  in  denying  appellpjit's 
motion   that    the  .?jction  \}e  dismisses  as    to  her   individually,  after  respond- 
ent hr.d  rested  her  case  in  chief,   and  upon  the  whole  proof,    in  refusing  to 
instruct  the  jury  to  retm-n  a  verdict  for  the    appellant.     Enough  has  been 
s?id  already  to  shov;  that  tlie  case  wa&  one  for  the  jury. 

AssiugTients  10  to  15,    inclusive,    rest  upon  the  refus?,l  of  the  court 
to  give  certain  instructions  requested   in  writing  by  the  appellant.     They 
are  not    set  out  in  the  b-ief.      They  have  been  e::;amined,  however,   and  found 
not   to  be  applicable,  ■v.lth  one  eixeption,    in  this  case.     As  to   that   one,   1 
it  was  given  in  substcaice  and  legal  effect. 

Assignments  16,    17  and  18    :.re  that  the   court  erred  in  cert-.in  instruct- 
ions  that  were  given.     K-:amination  and  consideration  of  then  ehow  they 
v."ere  plainly  correct,   clear  and  to   the  point. 

The  contentions  iTjade   in  assignments  19,    20  cjnd  21   th:.t    tliere  should 
have  been  no  deuic.l  of   appellant's  motion  n.   o.  v.,    that   the   motion  for  a 
new  trial  was  ii/ipi-op erly  de;Tied,    end  th^t   entry  of  judgment   upon  the  ver- 
dict was  unwarranted,   are,    each  :^riL  all,    aithout  raeiit    -nc'    require  no  dis- 
tinctive discussion. 

Affirmed.  '  ^c  v^     p\^ 

Main,   Bridges,    -"nd  Tolraan,    JJ.,    concur. 


I 


277. 


STOCKSTILL  et   al .   v.   B:l?iT  et   cl. 
(Circuit  Court,  D.  ^'."cvsMriston,   N.D.  August   11,1691) 

la  Equity. 

Before  Sav^jror,    Circuit  Judge,   and  HoBford,  District  Judge. 

Hnnford,   J.     This  is  a  suit    to  remove  a  cloud  u^oa  the  title   to_ real 
estate.     A  certain  cor'ijor.-.tion.  teing   the  a  i^^-arent   ovmer  of   the  property-, 
sold  it  to   the  com:,^lainant£   for  its  full  value,  gave   tl-iem  a  deed,   gga^Tgt 
them  iu"l?bE"Ees2i~on.     V.h.ether  said  corpbrlitToh  v.  £~""or~vJas  not   the  les^^ 
ovrner  of_tjg  property  at  ' the'^Tr^  of  sajjL-aalaJie^-aii£^u:BPQ^JthejyalidiXy 
of  a'contract  vJhich   it  in~C.e  for  the  i:iurchase   thereof ^^aad  of  a  deed  given 
"to  Tt~^ylIrsTl?rxina  Forbes.      The  def ejadant  _£^arFclarms_toJbe_  the  ovmer  of 
the  "property  hy  virtue  of  a  deed  to  him  from  Mrs.  Forbes  a-nd  her  husuafld » 
and  he'^lirnr  given  a  mortgage  u.-on  it  to  his  co-defendant,   Ilrs.  V/illcie. 
Said  deed  and  raortgrge  have  ■be3n  recorded   in    the  public  records,   andjthe^ 
claim^to    the  property  which  Xhe  def eridaats^_are  asserting  by  virtue^  there- 
of constitutes   tlie  cloud  yhich^'the  plaintiffs  ash  the  coia-t  to  re:nove . 
Er7~and^T5'5"rTorbes  are  the  parents  of  Ih-s .  V/ilkie,   v/ho  is  a  marriecrrTO - 
man»    living  se^^arrte  r-nc.  apart    from  her  husband;   and  the  defendant  Bart 
is  a  son  of  Mrs.    Vilkie.     All  of  said  parties  live  together  as  one  f.amily 
and  Mrs.  V.'ilkie  is   the  business  manager  and  provider,  Mr.   and  Mrs.  Forbes 
being  'ell   advanced  in  years  ani  feeble. 

Ihe   trajasact ions   and  facts  affecting  t  he  title  to   the  property   -jad 
leadiiig    to  this   lav/suit  are  as  foilows:  Mrs.  V.'ilkie  bought   the  property, 
dnd  paid  her  o\ai  money  for   it.     By  her  direction  her  mother  v/as  named  as 
the  grrjitee  in  the  deed  given  to  consummate  said  purchase.     Mrs.  V.'illcie 
eijployed  a  firm  of  real-est-.te  agents  to  sell   said  proie  rty,    :^nd  through 
said  agents  negotiated  the    sale   of   it  to   the  Good  Te.nplc>.rs'    Investment 
.Issoci-ation  of  irJce  "/ashingto.i,   the  corporation  before  mentioned.     By 
her  direction  Mrs.  Forbes  racde  a  deed  to  said  corporation.     At  the  time 
of  said  sale,   Mrs.    "Tillcie  represented   to  her  said  agents,    end,  presumably, 
through  them  to   tlie  purchaser,   that  the  propert3.'-  v/as  her  ovrn,   but   the 
business  h:,.,  to  be  done    in  the  na.me  of  her  mother,   for  the    reason  tlia.t 
she  could  not  deal  in  real  estate   in  her  o' n  name,   as  she  liad  a  husband 
living   ill  Chic -go.     The  defendant  Bart  had  actual  laiov/ ledge  of   the  sale 
to  said  corporation,    and   subscribed   tlie  deed  given  by  his  grandmother, 
as  one   of  the  -.•itnesses.     Saldsale  •vas  ircde  for  a  consideration  of  ^500 
in  cash  and  the  further  swa  of  vl.OOO   to  be  paid  thereafter,   secured  by 
a  uiortg  ge  upon  the  property,    in  which  Mrs.   Forbes  '""as  named  as  the  i.iort- 
gagee.     Mi-s.  '7illa.e  received  all  of  the  -/500,    and  used  it  as  her  ovrn. 
There  ixas  "bQeii  no  offer  made  by  either  of  the  parties  to  restore  any  part 
of  said  consideration  to   said  purchaser  nor    to   the  pl-intif.-s.     Several 
months  after  said  purchase   tho   corporation  sold  the  S'roperty  to   the  plain- 
tiffs  for  the  price  of  02,000,    one-half  of  vh  ich  was  paid  in  cash,   and 
the  remainder  was  paid  by  assui.iing  the  obligation  to  pay  Mrs.  Forbes  the 
principaJ.  and   interest  due  and   to  become  due  upon  the  mortgage  above  men- 
tioned.    Before  consummating  this  purchase,    the  plaintiffs  questioned  the 


title,   on  the  groioiid  that  llr.   Fcrtcs  had  not  joined  i7ith  his  wife   in  tb.«) 
conveyrjice  to   tha  corporation;   cujI    t.o  Keet  the   objections  so   raised,    pxJ. 
sa.t.i£:.fy  tie  plr',intixf.3   tlir.t  the  title  "'.s  valid,    the  agents  through  rhaji 
tiae  sale  v/as  negotiated,  heing  tlis  seme  firm  who  had  tefore  negotiated 
the  sale  for  I.Irs,     alkie  to  the  Gorporn.tion,    obtained  a  quitdlaim  deed 
from  I'j:,   Forbes   to   the  plaintiffs,    said  deed  being  for  a  noraina.l  concid- 
eration.     After  said  purchase  tlie  plaintiffs  entered  into  actual  posses- 
sion, and  Invo  eiijendod  about  ■O'^O   in  iari:ing  inproveaents  upon  the  prop- 
erty.     Tlie  defendants  both  laae\7  of  the  making  of  this  deed  at  the   time, 
rjid  made  no  objection  to   it,   e::cept  that  I'xs.  '  ilkie   informed  tie  agents 
who  aslred  for   it    fiiat  Ilr.    Forbes  had  no   interest  in  the  property.      The 
deed  from  Ilr.   and  Ilrs  .  Forbes  to  tlieir  grazdcon,   the  defendant  Bart,  \7as 
given  subsequent   to  the  purchase  of  tie  property  lay  the  plaintiffs  aJid 
the   taking  of  possession  mider   it,   rjid   for  no  consideration  other  than 
love  rjad  affection;   and    the  mortgage  from  Bart   to  his  mother  •>.'as  also 
given  without  consideration  other  than   love  and  affection;  and  both  of 
said  inctriments  were  given  at   the   request  of  LIrs.  V/ilT:ie. 

The  defendants  admit  that  their  position,   for  tlie  purpose   of  claim-- 
ing  the  property  adversely  to  the  plaintiffs,    is  no  better   than  tliat  wh.vch 
llr.   and  Ilrs.  Forbes  -vould  occupy  if  the  deed  to  the  defendant  Bart  ha^.  not 
been  given;  but  Ihey  contend  tliat  said  parties  did  not  by  their  separate 
deeds,   nor  by  reason  of  ti£  facts  above  narrated,   convey  an,','-  title  to  the 
plaintiffs  or  their  grantor,  nor  become-  estopped  from  claiming  the   land. 
Ihey  claim  that  by  the  deed  to  Ilrs.   Fdrbes,    the   land  became  cora-.Tanity 
property  of   tlie  said  grantee  and  her  htisfaand,  and  in  this  they  rely  upon 
the  follo-.dng  provisions    of  the  Code   of   liiis  state,   viz.:      Sections  2400 
and  2406  in  effect  provide  that  the  property  and  pec-jniary  rights  of  mar- 
ried persons  at   the  time  of  marriage,   anc;   the  property  and  pecuniary 
riglits  acquired  by  each  after  u^arriage ,  by  gift,  devise,  bequest,   or   in- 
heritaJXB;  ',;itli  the  rents,,    icsiBS,  ard  profits  thereof,   shall  be  the   sep- 
arate property  of  each  respectively;   and  section  2409  males  all  property 
of  married  persons  acquired  after  marriage,    other.vice  than  as  prescribed 
in  sections   2400  and  2408,  coiiimunity  property .     '-^-ien   the  title   to  real 
estate  is  conveyed  to  a  i:2arried  pei-son  by  a  deed  \£iich  dees  not  by  its 
own  terms  or  recitals  sho-j  to  the  contrary,   a  legal  presumption  arises 
that  the  property'  becomes  coinmunity  property.      23iis  presujaption  is   in- 
volred,   and   the  defendants  claim  that  it   is  strengthened  and  ijade  conclus- 
ive  in  this   iiistanco  by  lirs-   'ill-ie's   testimony  given  upon  the   tria.l,    to 
the  effect  tliat  she   intended,   by  causing  the  conveyance  of  tlie  property 
to  her  motlier,  to  malE  a  gift  oz  it   to  both  of  Itier  parents.     The  defend- 
ants claim  further  that  conmunity  property/  cannot  be  conveyed  by  the  sep- 
arate deeds  of  the  ovfiiers,  nor   other. -is e  than  hy  a  joint  deed,  and  tliat 
sjiy  contract  for  tlie  sale   or  incumbraixe  of  coEi:aunit;^  property  other  than 
a  joint  contract  of  the  husband  aif.  wife  is  not  enforceable,  because  pro- 
hibited by  a  positive  statute,    to-v/it,   section  2410  of  the  Code,  v»!liich 
roads  as  iollo".;s: 

•'Eie  husbanc".  has  tie  management  and  control  of  cor.iaunity  real  prop- 
erty but  he  si-all  not  sell,  convey,    or   incuinber  the  community  real  estate, 
unless  the  \/ife  join  with  hLm  in.  e::ecuting  Cie  Ceet  or  other   instrument   of 
conveyance  by  \.'/n.ch  the    real  estate   is   sold,  conveyed,    or  incumbered;   and 
such  deed  or  other   insti-ument   of  conveyance  muct  be  ac Icnowledged  by  him 
and  his   ./ife;     prov:jLded,  however,   that  all  such  coiomunity  real  estate 


279. 

shall  be  EUbjcct   to   the  liens   of  fficcioaaicc  azd  others  for  later  and  rnater- 
ialr.  furnislTed  in  ereotiog  ctrizcturec  cud   improveir.onts   thereon,   ac  pro- 
vided by  lav;  in  other  catJJes,    to  liens  of  judsmcctc  recovered  for  commun- 
ity debts,   and   to  sale   en  execution  issi'cd  thereon." 

"le  do  not  ascent   to  the  proposition  that  the  property   in  controversy 
ever  became   tjie  coi.jTiUnity  property  of  Ilr-   and  llrs.   Fofcbes.        The  facts 
v.hich  are  conceded   in  relation  to  I  Irs.  V/il&ie's  actions   in  Inyins  and  pay- 
ing for  the  property,    in  ordering  th5  sale    of  it,   p.nd  receivins  and  -asiiig 
the  proceeds   in  connection  v/ith  the  fact    that  at  the   tiiiB   of  causing  the 
title  to  ■:;o  conveyed  to  her  mother  she  did  not,  by  any  act   or  declaration 
vMch  can  be  now  proven  bj''  the  testimony  of  disinteres'ted  •.dtnesses,  man- 
ifest an  intention  to  raaice  a  gift,  and  the  further  fact  that  her  mot?-i?r, 
to  \/hcm  she  caused  the   title  to  be  conveyed,   v.as  subject  to  her  influ-snoo; 
if  not  entirely  subservient   to  her  v/ill,  and  the  motive  which  she  had  to 
place   thfe  t.'.tle  to  her  oxm  real  estate   in  a  person  other  than  herself  oja 
account   of  her  oxm  status   as  a  married  •.'.•oman,  aiai  consec^uent  inability  to 
deal  in  real  estate  in  her  o-.rn  name,   are  anply  sufficient   to  refute  her 
testimony  as  to  her  intention  to   give   the  property   to  her  parents.     1 
Perry,    Trusts,  £ec.    147.      The  conclusion  follo\;s  naturally  and  irresisti- 
bly from  the  premises  that  the  name  of  IJrs.    Forbes' v7aE  used  in  the   trans- 
actions for   the  salce  of  convenioi:ce,   and   ftiat  from  the  conveyance  to  her 
there  was  a  resulting'   trtist  in  favor  of  Mrs.  '.7ill:ie  as  the   true   owner. 
Id.  Sec.    3)26,   Mo,    147.      This  being  so,   the  deed  given  by  Llrs.   Forbes, 
the  trustee,    to  the  corporation  by  direction  of  llrs.   Willcie,    the  cestui 
que   trisst,    for  a  consideration  equal   to   the  full  value   of   th^  property  at 
the    time,  was  sufficient  to,  and,    in  our  opinion,   did,    convey  a  perfect 
title. 

In  the   second  place,   the  Ig'.v  of  this   state  does  no:t-Cx&ate-«oniran-ni,ty 
property  out   of  real  property  acquired  by^  gift_;___Kiere   is  no  room  for.xais^ 
"rad^rii  Land  lug  ar  inis  interpretation,  of  the  statute^    In  plain  -..ords  cec- 
tront!  <i4UU  and  i;4Ub  deciax-e  acquisitions  by  gitft  after  inarriage  to  be  sep- 
arate  property,   ana  m  laugxcige  equallj'  plain  section  2409  e.-cludes  prop- 
erty  acquired  by  gift  iirdescribing  eixI  defining  conraunity  property  •. 
Eence'Tbrs .  ",. "illcxe:,  eren   if  she  biad  such   intention,   and  if  she  b^d  declared 
it  at  the  time,  couxc  no't,  by  raalciir:  a.  gift  to  herjParen ts .  cTeate  commun- 
ity property,   or  change'The  natiurg~of  the  property  beii±jQi/£d_Si3_^tiiat_it   ,  • 
shoulcrTe^_^^EoF  the   title  vested  in  her  donee^ .different    iiLCharac ter 
Troa  that  given  to   it  by  the  statute.     \7e  find  in  the  community  property 
larJ~no^lj:^;edrracnt  "to  the  ve^ting^of  an  estate   in  a  mai-ried  person,  \,iiether 
man  or  woman,    in  trust,  nor  to  the  acquisition  bj'  a  man  and  his  vafe,   as 
the   separate  property  of  each,    of  undivided  interests   in  the  sane  lot  or 
Parcel  of  lan5.;   but  coitmunitj'-  property,  being  a  creation  of  the  statute, 
can  e::ist  only  under  the   statute,    and  must  ans\.'cr  the  statutory  definition 
of  such  propertj/-, 

,e  have  considered  this  case  from  every  point   of  viev;  suggested  by 
co-onsel,    and  -..-e  oust  finally  reach  the  saae  conclusion  vtiether  Tj'S. 'Forbes 
be  regarded  as   the  holder  of  the  title  in  her  ovm  right  as  sole   o.-ner,   or 
as   trustee  for  her  daugiiter,  Ti'S.   bilkie,    or  for  herself  and  her  husband, 
or  assume   tliat  the  pvopei-tj;-  -,,a,s   the  cor^iaunit;^  property  of  Ilr.   and  llrs. 
Forbes,  for,   altliougli  -./e  could  not  affina   tlie  validity  of  the   separate 
deeds   of  a  husbaoxl  End  -./il'e  as  conveyances  of  the   legal   title  to  community 


V 


V^^   r     dC 


(^ 


— _^/  > 


j:ic:^^  ,f^.^ii^o^-^>uo 


jza^  ■ 


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y^,      y^^<-e 


c^     c::*^^-^ 


y^-^yc? 


280. 

property,   unaffected  liy  other  circumstances,    still  \/e  Tiold  that  the  -fnc'f 
in  this  cai;e,  clearly  est?.lDlis:^.ed  "by  ths  evideace,    are  EUfxicient   to 
create  aJi  ectoppal  aga-xusi;  both  Mr.   and  Ilrs.   Fortes,   de'Darring  them  fro:-;, 
claiming  the  property  arlvorseiy  to  the  plaintiffs,     llrs.   Forbes  understco-l 
that  by  hor  dned  given  to  tl'^e  corpora --ion  named  it  was   induced  to  pay  a 
considerable  sum  of  money  to  her  dauj^htsr;  aiid,   laiov/ins  that  fact,   tihe 
cannot  honestly  or  r.ithout  being  guilty  of  fraud  repudiate  her  solen.j  a*"! 
rir.  Forbes  Inew  of  the  sale  to  the  corporation  soon  after  it  was  made,   f,r.  . 
yet  iDade  no  objaction  to    it,   nor  asserted  any  claim  to   the  Property,  unt-.'. 
after  he  had  given  his  deed  to   the  plaintiffs.      Shis  quitclaim  deed,    if  r<> 
valid  as  a  conve3?-a"ic e ,    is  at   least  a  diip^^l aimer  of  any  interest  in  the 
property,   and  by  it  the  plaintiffs  were  induced  to  purchase   tha  property 
and  pay  for  it;  and  the  porson  by  -vhom  they  -v.-ex-e  so   induced  cannot  by  azaj 
act  or  deed  nov;  deprive   them  of  the  property  vathout  perpetrating  a  gross 
fraud.     Hie  plaintiffs  had  no  reason  to   ^ippose   that  either  I.ii'.   or  Ilrs. 
Forbes  did  anything  v^ich  thej;"  had  no  right  to  do   in  giving  either  of  the 
deeds  mentioned.      Ihey  are  not  chargeable  v/ith  notice  of  any  facts  render- 
ing said  deed  invalid,   and  they  occupy  the  position  before  the   court   in 
this   suit   of  bona  fide  purchasers  of  the  property  for  its  full  value  from 
the   apparent  real   ov.ner,    and,    as  against  Ilr.   and  Ilrs.   Forbes  and  the  de- 
fendants  in  this  case,   are  entitled   to  the  protection  v.hich  equity  affords 
to   such  purchasers  of  property. 

The  case  of  Holyoke  v.  Jaclrson,   3  Pac .  Rep.   841,    3  V.'ash.   T.   235, 
cited  by  counsel  for  the  defendants,   is  quite  different   in  its  facts  from 
this   case,   and  therefore  not   in  point.      In  that  case  the  bargain  was  made 
during  the  vendor's  absence  from  his  home,   and  \-lthout  the  lmo\;ledge   of 
his  vife.      The  vendee  t/as   the  proposing  parly   in  the  negotiations.     He 
knew  at  the   time   of   the  traasaction  that  the  property  \;as  community  prop- 
erty •,^iich  the  other  party  could  not  sell  T.ithout  his  \.ife's  consent,   and 
he  v/as  distinctly  v/arned.,  before  he  paid  any  part  of  the  purchase  money, 
that  the  v/ife  had.  not  consented  to  nor  authorized  the  sal.e .     Tr.en,   at  the 
earliest  opportunity  after  being  inforraed  of   it,   the  wife  dicaf filmed  the 
sale,  and  so  notified  the  vendee,  and  a  legal  tender  of  the  amount  of 
monoy  received  on  the  contract,  •..•ith  interest,   vas  promptly  made,   and 
thereafter  lEpt  good.     Tiiere  v/as  no  fraud  in  the  case,   so  that  there  could 
have  been  no  recover:'  of  dcmages  in  a  sum  greater  tlian  the  amount  tender- 
ed before  the   suit  v/as  commenced.     Tliat  case,    therefore,    is   one   in  -v/hich 
the  defence  rested  Ux^on  honorable  grounds,   and  it  does  not  support  the 
position  held  by  the  defendants   in  this  case  in  their  endeavors  to  beat  a 
purchaser  out  of  the  fi-uits  of  his  bargain,   after  receiving  from  him,   and 
\Aiile  retaining,    tlie  purchase  money.      Tiae  other  authorities  cited  on  the 
side  of  the  defense  are  also  inapplicable  to  the  facts  of   this  case  as  v/e 
find  toiera  from  the   evidence.     Upon  consideration  of  all  the  evidence, 
pleadings,    and  arguments,  v/e  consider  the  plaintiffs  to  be  entitled  to 
tlis  relief  prayed  for,   and  av/ai-d   them  a  decree  accordingly. 

Sa'.vyer,   J.,  concurs.  ^       '^  ^^     X  \. 


/.>i-<fe<' 


\ 


281. 


ADAT-IS  et  al.  v.  "II.  CittEEROn  £0  CO.,    Inc., 
et  al. 

(Court  of  Civil  Appeals   of  Te::as.     Texarkana  Hov. 
20,    1913.) 
(161  Tex.  417.) 

Appeal  from  District  Court,   Trinity  County;  E.  T/.  Dean,   J  udjje. 

Consolidated  actions  ty  A.   J.  Adams  and  others  against  V,ta.  Caraeron 
£;  Co.,   Incorporated,   and  otliers  and  against  E.   L.   Glover  and  others. 
From  the   judpiBent-,  plaintiffs  appeal,  and  the  first-named  defendants 
cross-appeal.     PLeversed  and  remanded. 

jU_J.  Adams   and  others,  heirs  of  John  E.  Adams,  deceased,  Toy  a  stat- 
utory suiT  of   trespass'to  tr/  title  against  w'ln.  Cameron  c:  CoTVinc . ,   C. 
~L^Ihreg£yj^^;_j^_J^^_^]j,tT^_jnd  A.  A.  .'-lien,   appellees,   and  C.  C.  Adams 
and   others,   and  another  suit   of   the  same  nature   against  H.   L.    Glover  and 
others,   sought  to  recover  the  J.  B.  Hartin  survey  of   640  acres  of  land  in 
jrlSTt^ county^     E^_jtv;o~suits_Y{ere  consolidated.     A  trial   of   the  consol- 
Idated  £iirt~T:esulted  in  a  judgment  as  follov;s,   so  far  as  it  needs  to  "be 
stated:      In  favor   of  C.C.  Adams   for  costs,    on  his   disclaimer  of  any  claim 
of  an  interest  in  or  title   to  any  ©art  of  the   land;    in  favor  of  appellants 
against  \7ra.   Cameron  £:  Co.,    Inc.,   on  their  disclaimer,   for  all  e::cept  206.7 
acres  of  the   land;    in  favor  of   appellants  against  Polly  Jolinson,   on  her 
disclaimer,  foi-  all  e:;c3pt   50  acres,   and   in  her  favor  for  the   50  acres; 
in  favor  of  appellants  against  P.,   L.    Glover,   on  his  disclaimer,   for   all 
the    land  e::cevt   96  acres,   and   in  his   favor   for   tlie  98  acres;    in  favor  of 
appellants  against  S.   \1.  Ilagee,    on  his  disclaimer,   for  all  the   land  e::- 
cept  105  acres,   and   in  his  favor  for  the   103  acres;    in  favor   of  appel- 
lants against  A.   J.   V/allrer  axd  Azeline  ''a liter,   on  their  disclaimer,   for 
all  the   land  G::cept   t\,o  acres,   and  in  their  favor  for  the   tv,c  acres;   in 
favor  of  appellants  against  C.   L.    Threadgill,   on  his   disclaimer,   for  all 
the   land  e::cGpt  40  acres;    in  favor  of  appellants  against  B.  A.  Piatt,   on 
his  disclaimer,   for  all  the   land  except  29-2/3  acres;    in  favor  of  appel- 
lants against    'm.  Caraeron  d-  Co.,    Inc.,   for   one-half  of  the  206.7  acres 
mentioned,   end   in  their  favor  for  the  other  one-half   thereof;    in  favor  of 
appellaats  against  C     L.   Thread.gill  for  one-half   the  40  acres  claimed  hy 
him,   and  iu  his  favor   for  the  other  one -half  thereof;    in  favor  of  appel- 
lants against  B.  A.  Piatt  for  one-laalf   the  29-2/3  acres  clairrod  ty  him, 
and  in  favor  of   appellants  against  all  tlie  oGier  parties  defendant,   on 
-.vhorn  service  \/aE  had,   fo-    all  the  land. 

The  parties  to  the  appeal  as  appellants  are  said  A.  J.  Adams  and 
others,  plaintiffs   in  the  court  Iselov/,   vnd.  as  appellees  aaid  "'m.  Cameron 
&.  Co.;    Inc.,  C.  L.    Kireadgill,  A.  A.  Allen,   and  B.  A.  Piatt,   defendants 
in  that  court. 

From  agreements  of  the  parties  and  testimony  heard  at  the  trial  it 
appeared  that  Solomon  Adams.  a,lso  laiovffli  as  S olomon  S  tone ,    in  1818,    in 
Tennessee,  i3:arried  Vicey  ricllhaney,   hy  vhom  he  had  tliree  children,     m 
1824  or   1825"~he  al^aadoned  IlLs  _said  v/ifp~flrrrr"frFTeir  children.    leavin,g  them 


282. 

in  Tennosnee,  and  goiEg  with,  a  woaae.  named  Frances  Schafer  to  AlaTsama. 
As  enrlai-iai-L'."i'  a?   t'le  ccr'-iuct  of  sard  Z  olomon  Adams   in  eo  aljandoning  his 
wife,   appellees  v^orn  pprri:i.l-ted  to  prove  'bj  the  witnesses  C.   C.  Adams  ajid 
J.   ',7.   irpto:i,   over  ;?ppellaat-,^'    o'bjection,  v±j.ch.  is   assigned  as  error,   that 
SoloKon  Adar-s  after  ho  married  Hat  i  id  a  V7aters,   as  hereinafter  stated,   and 
his  wife  Vicey  alter  she  irarried  V/.   B.  Bowen,    as  hereinafter  stated,   de- 
clared in  ei'fect  th.at  j-rf.jceo  Schafer  Vv'as  a  hired  girl   in  their  family, 
and  that  Sol o]jTcn_A^..air.q  |j^.G£:-De   offended  at  his  wife  and_thexe'apos.,de s e r t ed 
her  aa.d  left  v/ith  b'-'.-anr  es  for  Alah^a.     Vfloat,   if  any,  relation  Solomon 
Adams   a:cd  Fra-oces  Srhafer  i^iereaf  terwards ,   n.nd  Ijefore  1857,   hora  to  each 
other  dcss  r..(;t  appo^-'i'  froT.  the  record.     But   it  does  aj'^car  that  on  ITovem- 
her  11,    10?':',    fhcy,    as  Ivjri'D3i-.d  ajad  v.lfe,    in  Dallas  coTxabv,  Ala.,  hy  their 
deed  of    fact  d.v.'-c,    :..n  cou'^lderation  of  ;,li,J3C  paid  to   -them,   conveyed  a 
tr-3'.;c  of  l;:s.:l   in  said  I'C'.lIas  ccunty  to  one  John  rleard.     According   to  tjie 
certificate   of  an.  cificer  of  said  Dallas  county,   attached  to  the  deed, 
the  eicecution  thci-eof  was  aclaiowledged  before  him  hy  said  Frances  on  Kov- 
emher  11,    1037.      In  the  certificate  Frances   is   descrTocd  as  the  t/ife  of 
Solonou  Adar^s,  and  ?"  t  is   stated  therein  that  as  Ms  wife  she   aclnaov/ledged 
the  C'::f)Cu.i:ion  of  the  deed,    after  she  had  heen  e:ca':aised   by  the   officer 
vn.th  refercnco  thof-eto,   apart  from  her  hushar.d.     After   the   e;:ecution  of 
thi.'4   deed,   cVjii-ing  raid  year  1857,  Solorcon  Adams,   vrlth  Frcnces  as  his  wife, 
catie  to  nous  ion  cou'.oly,    Te:c. ,  where   they  lived  together  as  hushand  and 
\.lf3  until  l;;"''-iC.      Ihey  h-ad   si-::,  or  more  childre-i  horn  to    them,    among  the 
ni^'ber  heing  said  JoY^  3.  Adams,   deceased.     During  tlie    time  they  so  lived. 
'Ecg^'.h.i.'',  "tTiey  claimed  and  were  repabed  to  he  hue  band  and  \n.fe,   and  were 
recognised  as  SMch  hy  all  their  neighhors  and  arq.iajntances.   -  In  1856 
SolcjuC-p.  Ai^^js  killed  a  man  named  Tyler,    in  Trinity  co-nt;,',     A  short  time 
the rnrS. t erv.'ardi~J    to  avoid  arrest  and  trial  for  the  hor-iicide,   it  seems^,Jie_ 
ahajyipned  his  v/it'e  p:rA  chT  idren  hy  Frances,    leading  the   state  and  going 
to   ^''irginia,   vihere,    on  Catcher  27,   1657,  he  marrjed  Ilatilda  T/aters,  "Sy 
v/hom"ha  liad  ttiree  children.     After  Solomon  Adams  ahandoned  his  wife  VTcey, 
arc.  While  he  v;as   living  in  Te::as  v-ith  his  v;ifc  Frances,    to  wit,    on  Decem- 
her  6,   1841,  to  acquired  by  purchase  the  certificate  "by  virtue  of  \ihich 
the    land   iu  controyorsy  \<-aE  surveyed.     He  never  returned  to   Te:n:as  during 
tlie   lifetime   of  his  said  vafe  Frances,   hut  for  severa.l  years   lived  v/ith 
his  -.vlfe  Ilatilda  in  a  coiamvinit:/  in  Arl-'s.nsas ,  v/here  his  former  v/ife  Vicey 
lived,  with  said  Bowen  as  her  hushand,  "by  \hom  she  had  several  children. 
It  -./as  sho-,,n  that  Eov/en  abandoned  a  wife  and  children  he  had  by  her  d"ji 
Tennessee,   and,   accompanied  by  said  Vice3)',  moved  to  Arkansas;  but  vhen  this 
occurred  vffi.s  not  shown,     .ifter  Solomon  Adams  liad  abandoned  her.   as  stated, 
and  -.hile  he  was  living  out   of  'this  state  witn  i,.atiida  as  his  vafe,    lo  v/it, 
on  October  2^,   Xb66,  Frances,  by  her  deed  of  that  date,  for  a  considera^"^^|  ^v 
tion  as  recited  ttie rein  of  QuUP  paid  to  her  and  for  love  and  affection    '     ■ — ^ , 
sHe^had  for  him"r~c"onveyed  the  "taad   in  contrgyersy  to  al^geXlants'   fa/Eher.  i 

said  John  E.  Adams,  \;ho,   on  August  5,   1870,~5reci  intestate.     IfYiBS  shown 
^iat~S^omon_Adam5,  '..hen  he  left  Te::as  after  killing  Tj'ler,  was  in  debt, 
and  that~his~Eon-  "said  Julm  E.  Adaws,  pa^id  a  part,   if  not  slT,^  of  his-ia- 
debtedness;   and   it  was  further  shovm  that  said  John  E.  Adaes  during  his    __ 
father's  absence  from  the  state  l\irnished  to  his  rrother,    said  Frances,       '"  "^^^i*. 
supplies  neeaea  Dy  iier  to  live  on.      It  was  agreed  Tsy  the  parties  that  ap-  ' 

pelTanTs  "held   .hatever  titie'to  the  land  in  controversy  that  John  3. 
Adaans  and  his   -,afe,  ITatilda  AdaniS.,   had  at  the  tiire   of  the  death  of  John 
E.  Adams."     It  was  further  agreed  that  C olomon  Adams  died  intestate   in  or 
about  the  year  1873;   that  his  wife  Vicey  died  intestate  about   the   year 


283. 

1870;    tliat  hie  v/ife  Francos  died  intestate  alaout   said  year  1870;    tliat  hi'." 
vafe  ilatilda  died  intestate   "in  or  prior  to  the  year  1697";   and  that  de- 
fendants held   the  title,   if  ajjy  they  had,   to   the  land   of  the  chSMren  of 
Solomon  Adams  hy  his  marriage  vath  Vicey  llcllhaney  and  Ilatilda  Waters.     J', 
v/as  further  agreed  that  the   "deed  records,  court  records,  and  irarriage  rec 
ords  of  \7arren  county,   Tenn.,  -.here  Solonon  Adams  and  his  wife  Vicey  lived 
Trinity  and  Houston  counties,    Te::.,  vhere  he  and  his  vafe  Frances  lived 
after  the^'  came  to  Te:;as,   and  Madison  county.  Ark. ,  v/here  his  wife  Vicey 
lived  v/ith  Bo-.ven  after  they   left  Tennessee,   v;ero  destroyed  by  fire   in  or 
atiout   the  year  1870;   and  that  the  marriage  records  of  Pallas  county,  Ala., 
\\here  Solomon  I-dams   and  his  wife  Francos,    it  seems,   lived  hefore  they  cane 
to   Texas,   ^.-eve  lost  or  destroyed  in  or  atout   the  year  1052. 

V/illson,   C.   J.    (after  stating  the  facts  as  above).     On  the  case  made 
by  the   facts  recited,    the  court  told  the  jury  there  \,-ero  tliree  -..ays  in 
•which  the  existence  of  a  marriage  night  be  established:      "First,"  he   said, 
"by  proof   of  a  ceremonial  marriage  under  the   la\/s  of  the  state   in  -..hich 
such  marriage  is  contracted;   second,  by  family  history;   third,  by  proof 
that  the  parties   lived  together  as  husband  and  vafe  and  held  themselve'sr 
out   as  such  and  -were  reputed  to  be  husband  and  v/ife."     He  then  told  the 
jury,  that  "when  a  imrriage  is  once  shov/n  to  have  been  contracted  between 
Parties,   same    is  presumed  to  continue  until  sai:Qe   is  dissolved  by  the 
death  of  one   of  the  parties  ?)r  by  a  decree  of  divorce  entered  by  a  court 
of  competent  jurisdiction."     He  then  instructed  the  jury  to   find  for  ap- 
pellants for  all  the  land,   if  they  believed  "that  subsequent  to  the   time 
of  their  marriage  the  said  Solomon  Adai.is  and  his  ;/ife  Vicey  were  divorced 
by  a  court  of  competent   jurisdiction,   and  that  thereafter  Solomon  Adams 
and  Frances  v/ere  married,"  and  if  they  believed  "that  the   said  Frances 
Adams   sold  and  deeded  the   land  to  J,  E-  Adams  to  pay  the  community  debts 
of  herself  and  Solomon  Adams,    or  to  provide  necessities  for  herself  and 
her  minor  children";   and  to  fiixL  for  appellants  for   an  undivided  one-half 
of  the  land   if  they  failed  to  find    "that   the  said  Solomon  Adams   and  Vicey 
Adams  were  divorced,   and  that  thereafter  the  said  Prances  Adams  and  Solo- 
mon Adams  v.-ere  lav/fully  married,"  yet  believed  "that  the   said  Fi-ances 
Adams   in  good  faith  believed  that  she  was  the  wife   of  Solomon  Adams,   and 
that  together  they  acquired  the  property'-  in  controversy  in  this  suit,   and 
that  the   said  Solomon  Adams  abandoned  said  Frances,   and   thereafter  she 
sold   the  property."     Eie  verdict  returned  by  the  jui^-  for   only  one-half 
of   the  land  indicates  they  found  that  Solomon  Adams  was  never  divorced 
fCom  his  vafe  Vicey,   and  therefore   that  Solomon  Ada:is  and  Frances  Schafer 
\7ere  never  lawfully  rnai-ied.     On  the  issues  as  to  -wliether  Solomon  Adams 
■./as  divorced  from  his  -/ife  Vicey  or  not,    and  as  to  v/hetlier  he  married 
Prances  j; chafer  or  not,    the   court  instructed  the  jur^/  that   Gae  burden 
v/as   on  appellants   to  show  by  a  preponderance  of  the   evidence  "that  such 
a  decree  of  divorce  -..a-s  entered  by  a  court  of  competent   jurisdiction, 
am?-  that  thereafter  such  raariiage  was  contracted  bet^,■een  Solomon  and 
Frances  Adams,"  and  refused  a  special  charge  requested  by  appellants  as 
follo-..'s:      "You  are   instructed  that  when  a  marriage  has  been  Eho->,n  in  evi- 
dence,  -.hetiier  regTilar  or  irregular,  and  whatever  the  form  of  proofs,   the 
lav7  raises  a  presumption  of   its   legality,   not   only  casting-  the  burden  of 
proof  ;apon  the  party  asserting  its  invalidity,  but  requiring  him  tlarougii'?' 
out  in  every  particular  plainly  to  malre   the  fact  appear  that  such  mar- 
riage  is   illegal  and  void.     Eie  strength  of  the  presumption  of  the   legal- 
ity of   a  marriage   increases  -.ath  the  lapse  of  time  Carough  which  the  part- 


284. 

ies  are  cohabitiiDS  as  huG"band  and  \/ife.     no\/,   in  thic  connection,   you  are 
instructed  that  if  you  find  flc3>.n  the  evidence  that  a  carriage  tetv/een  Sol- 
omon and  Frances  Adorns,  prior  to  Decero'uer  6,   1841,  has  "been  proved  ty  any 
of  the  methods  of  proof  -.hich  the   la./ recognizes  aD  set  out  for  your  guid- 
ance  in  the  court's  general  charge,  tlien  the   lav/ presumes  the   legality  of 
said  marriage,  and  tho  hurden  is  upon  the  defendants,  xft.o  in  tliis  case 
are  attacking  it,   to  estaolish  their  contention  by  clear  evidence.     Tliis 
they  may  do  "by  shovdng  tliat  Solomon  Adams,    one   of  the  contracting  parties, 
if  such  a  marriage  v^s  consiimmated,  was  under  the  continuing  disability 
of  a  previous  valid  marriage;  but,   unless  they  so  shov/,   the    law  \dll  pre- 
sume that  such  disability  vac   terminated  by  divorce,   and  you  v/ill  find  in 
favor   of  the  validity  of  the  marriage." 

(1)    Hie  action  of   the  trial  court   in  instructing  the  jury  that  the 
burden  v.'as  on  appellants   to  prove  tloat  Solomon  Adams  v/as  divorced  from 
his  first  wife  before  he  irarried  Frances  Schafer  is  coEplained  of  as  er- 
roneous,    liie  contention  must  be  sustained.     Tn.e  burden  vas  on  appellaiits 
to  prove  a  marriage  bet\--een  Solomon  and  ?ra.nces,  but  not   ti)  prove  that 
such  mari-iage  was  a  valid  one.     A  presvimption  that  the  marriage  \as  valid 
v.Duld  arise  from  proof  that  it  v.-as  contracted,  and  the  burden  of  proving 
to  the  contrary  -.ould  be   on  appellees.     !El-is   they  might  do  by  shov/ing 
that  Solomon  had  not  been  divorced  from  his  first  v/ife  at  the  time  he 
married  Prances.     Tiie  rule    is  a  well-established  one,   and  is  based  on  the 
principle    that  the  lav/  -.all  presume  morality  and  innocence  rather  tlian 
immorality  and  guilt.     ni::on  v.  Wichita  Land  Cc  Ca  ttle  Co.,   84  Tex.  408, 
19  S.  T;.   560;  Y/ingo  v.  Rudder,    120  S.  V/.    1076:   Carroll  v.  Carroll,   20  Te::. 
741;  Ross  V.  Sparks,    79  H.'J.   Eq.    649,    83  Atl.   1118;    Gamble  v.  Rucker, 
124  Tenn.  415,    137  S.     '.7.   4;99;  llcCord  v.  IlcCord,    13  ,^jriz.   577,    114  Pac. 
968;  Lyon  v.   Lash,    79  Zan.   342,    99  Pac.   598;  Parsons  v.    Grand  Lodge,    108 
leva,   6,    78  N,   \7.   676;    19  A,   c";  E.    Inc.   Law,   pp.   1208,   1209. 

(3,  4)  As  noted  in  the  statement  above,   the  court   in  his  charge  to 
the  j-ary  predicated  the  ri:^t  of  Pr  ances  Adams,   if  she  v/as  lav/fully  the 
•./ife  of  Solomon  Adams ,    to  convey  the   land  to  John  E.  Adams,   on  the  fact 
tliat  she  did  so  "to  pay  the  communit^r  debts  of  herself  and  S olomon  Adams , 
or  to  provide  necessities  for  herself  and  her  minor  children."     Error  is 
not  assigned  on  this  portion  of   the  charge,   but  it   is  nevertheless  urged 
that  it  v/as  erroneous   in  that  it  did  not  recognize  a  right  in  Prances 
Adams,   after  she  had  been  permanently  abandoned  by  Solomon  A.dans.    to  sell 
the   land   to  provide  necessaries  for  hersdlf ,   but  reqiaired  the  jury  also 
to  find  that  she  sold  it   to  provide  necessaries  for  her  minor  children. 
It  is   insisted,  and    .;e  thini:  correctly,   that  there  Vas  no  testimony  shov7- 
ing  she   then  had  minor  children.     Undoubtedly  the  charge   in  the  particular 
specified,   for  the  reason  suggested,  vas  erroneous,   but,    in  the  absence 
of  an  assignment  presenting  it,   -.le  v/ould  not  because  of  the  error  be  v/ar- 
ranted  in  reversing  the  judgment.     But  error   is  assigned  on  the  refusal  of 
the  court  to  give  a  charge  requested,   telling  the   jury  if  she  and  Solomon 
•w-ere   la'./fully  narried  at  the  time  title   to  the  land  certificate  '.-as  ac- 
quired. Prances  had  a  right,   after  ho   abandoned  her,   to   sell  and  convey 
the   land   to  John  E.   Adams   to  provide  means  necessary  for  her  support.     On 
another  trial  the  charge  of  the   court  shotild  not  be  limited  as  specified, 
but  should  be  so  framed  as  to  require  the   jury  to  find   in  appellants' 
favor,   if  they  believe  Prances  andSolomon  v/ere  lav^'fully  married,   that  he 
aftcr-./ards  permanently  abandoned  herT^d  that  she"  so  Id  and  conveyed  the 


286. 

laxid  to  John  E.  Adams  for  the  purpose  of  providix^'  iDoaJas  nocossary  fo  her 
support.  -" 

For  the   error E  pointed  out   tlio  judgment  is  reversed ,_arid  the  cause 
is  remand od  for  a  new  trial. 


t:?<::k^<^-^-'\^^  )    f   ^A<r 


y^y{^         .SO-^         ^  C-^i.^-^^ 


^jZsa:^  ^'^^^-^^'^^ 


286. 


iS   3.   \7„   EY.    CO.    CF  TITL'-S  v.    GRIFFITH.     ,•  \ 


(Cou-rc  0.C  Oivil  AppeaD.s   of  Texas. 
Feh.   29,    3dS6.) 
(12  Te:c.   Cv.  A.    631). 

Appeal  from  district  court,   Pranldin  county;   John  L.  Sheppard,   Jud:;?, 

Ac, t ion  by  Annie  Griffjjh_againgt_th,?  f?t-  T.mjif;  noufhwestem^Eailv/ay 
Company  of  Teraa.     Judgment  for  plaintiff,  and  defendant  appeals.     Afriirr 
ed.  " 

Pinley,  J.      Hi  is   is  a  suit  for  the  recovery  of  damages,   instituted 

by  iuinie  Griffith  gainst  the  St.   Icuis  Southwestern  Railway  Company  of 
Te::as,   b aged^^^onT  an  indecgit  "assaulj:_JiQmmi  ttRd  upon  her  by  appp-Ila£tt '  s 
night  agent_at^  Its  depot Tn  Greenville.     Hie  petition  shows  the _ plain- _ 
tiff  tobe__a  married  woman,   and  that  her  husband  had  permanently  aban- 
doned her,   leaving;  her  vathout  means  of  support".     Appellant  pleaded:      (1) 
In  abatement,    that  appellee  was  a  married  v/oman,   and  not  entitled  to  sue 
alone.      (2)    General  and  special  demurrers.      (.3)   General  denial.      (4) 
Special  pleas  of  covertxire;    that  appellee  v,as  not   a  passenger,  nor  en- 
titled to  protection  as  such,   at  the   time   of   the  allesed  injury;   that  the 
acts   and   injuries  complained  of  constituted  a  wanton  ani  personal  tort  by 
the  employe,   committed  without  the   scope  of  his  auty  and  not   in  the  course 
of  his  employment,   and  were  never  ratified,  but   e::prensly  repudiated,  by 
appellant.     Appellant  also  pleaded  the   statute  of   limitations.      On  trial 
before  the  court  \/ithout  a  jury,    the  court   overruled  the  plea  in  abate- 
ment  and  demurrers,  and  rendered  judgment   on  the  merits  for  appellee  for 
$2,500.     From  this   judgment  the  railv/ay  company  has  appealed. 

The  trial  judge  filed  conclusions   of  fact  and  law.     Upon  the  issue 
as   to  plaintiff's  ri^t  to  sue,  he  found  these  facts:      "(1)   I  fird,   as  a 
matter  of  fact,    that  the  plaintiff,  Annie  Griffith,  at   the  date  of  the 
alleged  injury  complained  of   in  her  petition,   and  at  the  time   this   suit 
X13.S  instituted,   v.a.s  a  married  -/oman,  but  that  before  the  date  of  such 
injury   (some   ten  or   twelve  months)  her  huisband  had  abandoned  her  as  his 
wife,  and  that  at  said  time   she  vas  living  separate  and  apart  from  him, 
and  at  the   tiiiB   this   suit  was  instituted  she  did  not  taiov/  v/here  her  hus- 
band's residence  \/as."     Upon  the  plea  in  abatement,  the  evidence  shows: 
That  Annie  Griffith  is  a  married  \;oman.      That  she  '>;as  married  to  James 
A.    Griffith  in  1886;   she  being  then  15  or  16  years  old,   and  he  20  years 
old.      That  after   the  marriage  they  lived  together   one   year  at  the  house 
of  plaintiff's  father.     That  they   then  moved  to  Commerce,  viiere  they  lived 
some  time,   and  aftervards  went   to  Ardmore,    Ind.   T.,   v,here  they  lived  in  a 
small  house  built  and   ov.nod  by  James  il.    Griffith.      Hiat  they  sold  said 
house,  and  moved  bade  to  his  father's.     That  from  there  they  moved  into 
a  rented  house  at  Ilorman,    Ind.   T.,  v;here  they  were  living  in  July  1692. 
That  about  July  1     1892,   plaintiff,   vnth  her  husband's  conr-e-it,   went   to 
Ardmore   to  visit  her  parents.      That  a  short  time  aftervcrds  said  Jas.  A. 
Griffith  vrent   to  Ardmore,    and  visited  her  a  v/eek  or  tv/o,   but  did  not   live 
'■'ith  her  there  as  his  wife.      Tlmt  he  v/ent   from  there   to  Ft.   T.'orth,   Te;:., 
to  look  for  a  house,   and  \vas  gone  some  two  months,   during  \*iich  time  they 


267. 

corresponded  vjitli  each  other.     That  ho  did  not  get  a  home,    "out  came  1)301: 
to  Ardmore,  and  stayed  a  day  or  two.     Ihat  he  then  asked  plaintiff  to  re- 
turn with  him  to  Ter.as,  and   she  said    slie  \.ould  c;q  v.lth  him  any.'.'here,    ex- 
cept to   live  v.lth  his  parents,  v/hich  she  xiaz  unv/illin^'  to  do,  iDecause  they 
had  mistreated  her.     That  he  left,    saying  he  v;ould  set  a  home  near  Sherman, 
Tex.,  and  send  for  her.     Tl-^xt   she  paclced  up  her  thinf^s,  and  kept  ther/i  pack- 
ed,  and  \.-ent  to  tho  post  office  tvace  a  day  for  a  mouth,  but  got  no  letter 
from  him;  and  he  did  not  come  back,  and  never  contributed  a  cent  more  to 
her   sUx^l'Ort  thereafter.     That  she   then  supposed  he  had   left  her  for  2;ood, 
and  about  10  cr  12  months   tlaereafter  she  went  to  lit.  Vernon  to  make  her  h 
home  with  her  married   sister  living  near  there.     It  was  on   tiiis  trip  the 
injury  complained  of  occurred,  at  Greenville.     After  leaving  Greenville 
for  lit.  Vernon,    she  accidt'ntally  .net  her  husbaixL  on   the  tr?^in,  and  rode  with 
him  about  so::  miles.     That   she  then  told  hin  she  vrauld  live  r.-ith  him  anyv>aie»'^- 
under  the  sun,   e::cept  at  his  parents*  house.     He  did  not  say  v.here  he  lived, 
or  vhat  he  \;ould  do«     She  told  hin  that   she  had  had  trouble   at  Greenville, 
but  he  did  not  ask  her   anything  about  it,   an(?.  she  did  not  tell  him  what  oc- 
curred.    Ho  s'ave  her  no  raoney,   tut  save  the  baby  a  dime  and  10  cents'  v/orth 
of  candy.     He  got   off  the  train  at  a  small   station,  and   she  went  on  to  lit. 
Vernon,  and  brou^-ht  this  suit  by  the  advice  of  her  brother-in-law.     That  at 
the  time  James  A.   Griffith  parted  vath  plaintiff  at  Ardmore  the  last  time, 
in  tha  fall  of  1892,  he  promised  to  '.-.Tite  to  her,   but  did   not  at  that   time 
intend  to  do  so,  but   intended  to  permanently  abandon  her,   never  intending 
to  live  -vith  her  asain,  and   never   after  thit  time  contributed  anything  to 
plaintiff's   suport,  and  never  intended  to.     Tiaac,  at  the  time  plaintiff 
met  Janes  A.  Griffith  at  Bommeree,   she  asked  him  where  he  lived,  and  he  re- 
fused to  .tell;  ar/-  she  told  him  that   she  had  had  trouble  at  Greenville^. 
He  did  not   as::  her  anything,  made  no  reply,   and  acted  so  indifferent  that 
plaintiff  did  not   tell  hin  what  the  trouble  was.     The  evidence  clearly 
showed  a  perrac.nent  abandonment   of  the    .If e  by  the  husband,  without  fault 
on  her  part,  and  she  v;a£  left  without  any  means  of   support  v;hatever. 

Upon  the  merits  of  the  case,    these  facts-- r/ere  found  by  the  court: 
"(2)    I  find:      Tliat  on  or   about  June  27,   1693,   the  plaintiff  left  Ardmore, 
Indiea  Territory,  ^.'.•hero  hsr  parents  then  resided,    to  go   to  lit.  Vernon, 
Franklin  county,   Te::as,    for   the  purpose  of   living  with  one  of  her  married 
sisters,  -.-ho   then  lived  in  said  Franklin  county,  and   that    at   Gainesville, 
Cooke  ccantyV  Te::as,   slae  bought   snd  paid  for  a  through  coupon  ticket,  via 
Lherimn  and  Bells,  via  the  Ilissouxi,   llansas  Ji  Te::a£  Rail 'ay,   to  Ht.  Vernon, 
Frankliri  county,    Te::c.s.     Tliat  srid    ticket  \.'as  valid,   and  was  thereafter 
dv.ly  honored  and  accepted  by  the  defendant,   an?-  plaintiff  was  transported 
form  said  Gainesville  to   said  Ih^.  Ver:aou  by  the  defendant  on^  said  ticket, 
as  a  p:.EEenc-er  on  one  of  its  passenger    trains.     Tlirt   the  plaintiff  on  said 
June  27th  arrived  at  Greenville  on  the  Hissouri,  liansas  u  Te::as  Rail^-ay, 
under  her  contract  as  a  passenger  on  said  ticket,  and  attached  to  said  ^ 

ticket  ',-as  a  transfer  ticket  or  coupon,  which  the  plaintiff  had  purcnased    ^^_ 
paid  for  at  Gainesville,  fuon  the  Ilisoouri,   Ifensas  u  Te::aE  depot  to  tne        ^^^ 
depot  ol  the  defendant.     That  said  depots  ware  about  one  mile  apart.  That 
as  soon  as  plaintiff  reached  Greenville  the  conductor  of  the  train  of  the    ■ 
llissouri,  ICansas  C:  Te::as,   on  ^^hich  plaintiff  was  a  passenger,    shov.-ed  her 

the  transfer   line  or  bus  that  her  ticket  called  for,   on  vhich  she  v/as  to _,.' 

be  tra^nsferred  fro:.i  the  Missouri,  ICansas  £-.  Te::as  depot  to  the  defendant's- 
depot.     That  the  manager   of   said  transfer   line  accepted  her  as  a  passenger 
and  she  gave  him  her   said  transfer   ticket,   and  he  accepted  it,  and  promised 
to  Carry  plaint ii'f  to  an  hotel  to  v.^.it  until  defendant's  ne::t  reg^alar  pas- 


288. 

senger  train  left   Gi;eenville  for  lit.  Vernon;    it  being  then  a"bout   2 
o'clock  p.ra, ,   aim  the  time  for  the  defendant 'c  first  passejQ:;er  Jrrain 
thereafter  to  leave   Greemn"  lie  for  I.:t.  Voraon  "beins  12  o'cloclc  that  nisht . 
Tliat  the  oanascr  sf  said    rransfer  line  dp.d  ?iot  carry  plaintiff  to^an 
hotel,   but  did  carry  hor  direct  to  the  depot  cf  the  defendant,   a-cd  deliv- 
ered her  to  thj3  de.fsndan.t  at  its  depot  in  Greenville.     The  plair.tif f  had 
no  money,   and  was  with  her  babe,  v/iaich  v.as  a.bcut  one  year  old,  and  she 
\jQ.s  a  stranger,  and  did  not  Imov:  the  distance  nor  the  location  of  the 
hotels  and  boarding  hour-es  at  Greenville  from  the  defendant's  depot.     That 
she  inquired  ard  war.  told  that  it  was  a  raile  from  said  depot  to  the  ^near- 
est hotel  or  boarding  house.     And  the  court  finds  as  a  fact  that  said  de- 
pot xias  a  nile  f  j;om  a  boarding  house   or  hotel,  and  that   chere  ^.'aE  no  priv- 
ate residence  near  said,  depot.     That  the  plaintiff  entered  the  sitting 
room  of  defendant's  depot,  at   the  time  the  manager  of  said  transfer  line 
delivered  her  at  said  depot,   for  the  purpose  and  -.Tith  the   intention  of 
remaining  until  defendant's  first  passenger  train  thereafter  left  said 
depot  for  !.:t.   Vernon.     That  the  defendant's  station  agent,  I'x.  J.  D-   Bone, 
at  said  place,   saw  the  plaintiff  Jien  she  v.as  delivered  at  said  depot  by 
the  transfer  line,  and  sav;  her  enter  the  sitting  roojja,   and  he  aslced  her 
if  she  had  not  better  go  to    the  hotel  and  stay  until  the   train  on  which 
she  expected  to  take  passage  arrived,   and  plaintiff  replied  that  she  -./ould 
renvain  vhere  she  then  v;as,    in  the   sitting  room;    to  which  said  agent  con- 
sented,   or  made  no  objection.      That  about  9:30  o'clock  p.  m.    tlae  night 
agent,  Kr.  Callahaii,    of  the  defendant,    in  charge  of  said  depot,   entered 
the  sitting  room  \,here  plaintiff  was,   turned  down  the  light  in  said  room, 
and  placed  his  arm  around  plaintiff,    tried  to  kiss  her,    ever  her  earnest 
protest,  and  rtade  improper  proposals  to  plaintiff.     There  \/aE  no   one  at 
the  depot  o::cept  saic  agent,   the  plaintiff,  and  her  babe.     Eie  plaintiff 
begged  and  pleaded  \7ith  the  agent  to  desist  and  not  mo],ost  her,   told  him 
that  she  was  a  lady,  and  finally  he  '..■ent  back  into  his   office,   and  the 
plaintiff  irmediately  took  off  her  shoes,  and  took  lier  child  in  her  arms, 
and,   -.dth  as  little  noise  as  possible,    slipped  out   of   said  sitting  room, 
and  w-ent  to  the  residence  of  a  citizen  of  Greenville,   and  gave  the  alarm 
of  the  outrage  perpetrated  upon  her,   and  the  city  officers  were  notified 
of   it,  and  the  defendant's  agent  vjas  arrested;   and,   as  soon  as  the  com- 
pany va,s  notified  of   said  ag-ent's  conduct,  he  was   immediately  discharged, 
and  has  never  been  in  tlio   employment   of  the  defendant  since.     Tl::at  the 
conduct  of  said  agent  frightened  and  humiliated  said  plaintiff  in  the  e::- 
treme.     Tlie  plaintiff  vra-s  at  that  time,   and  is  no-w,   a  lady  of  refined 
feelings  and  sensibilities.     Tliat  said  fright  prostrated  the  plaintiff, 
and  greatly  injured  her  nervous   system,  perhaps  permanently.     Her  health 
at  said  time,   and  before,  was  good.     Since  that  time,   and  immediately 
afterwards,  lier  health  became  bad,  end  she  suffered  ^nd  is  suffering  from 
hysteria.     Thx;  plaintiff  stayed  in  Greenville  until  the  ne::t  day,   and 
tiien  -.jcnt  to  i:t.  Vernon  on  one  of  defendant's  passenger  trains,   and  the 
defendant  accepted  from  plaintiff  said  ticket  she  purcliased  at  Gainesville 
in  payment   of  her  fare  from  Greenville  to  lit.  Vernon.      Tha.t  -.hen  plaintiff 
reached  G:.eenville  she  -.;as  transferred  to  tlie  depot  of  defendant,   and  -was 
told  by  lir.   Bone,    the  agent,   about   dark,    tliat  she  could  reroain  in  the   sit- 
ting-room of   the  depot   till  train  time.        That  plaintiff  misled  the    train 
that  night,  but  ne::t  day   traveled  to  I!t.   Vernon  on  the  reirainder  of   said 
ticket,   after  giving  a  part  to  the  Missouri,   liansas  c;  Te::as  Eair./ay  Com- 
pany,  rnd  the  coupon  to  the   transfer  man  at  Greenville.      That   the   ticket 
puichased  by  plaintiff,  upon  -..hich  she  \ra.s   traveling'  as  a  passenger,  '^as 


.^"^t^ 


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^      o^^^    ^^5~ 


/  ^^"^i^     '^    . 


X 


V 


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(i-^ 
x^' 

/ 


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££,0^^^  y       ' 


--^(^-^ft^^^. 


289. 

a  coupon  ticlret   iccucd  "by  the  Missouri;   limsas  C:  Tc::ac  Railvay  Compniijy 
at  Gainesville,  containing  couponn  as  follcws:     Pii'st,  over  the  IIin:;ouri, 
Ii:n.sa.<3  c:  Te::as  P.ailv/ay  (hj^xpany  from  C-aircsvill'D  to  Greenville;   Geccn.d, 
Franlc  Brame  Transfer  Cori/iny  coupon  from  depot  cff    Ilissouri,   ISnsas  c:  Te:i- 
as  Eail\.'ay  Corapaay  to  depot  of  St.  Louis  SoutlT..-estern  Railway  Oowpany; 
third,    coupon  of  St,    Louis  Sou.th-.;estGm  r.ail\.ay  Conpany  fron  Grec-nville 
to  lit.   Vernon.     Tl-\at  said  t'icfcet  contained  the  follov.lng,   a^ion^  other, 
provisions,  pr:n-;ed  thereon:      'In  consideration  of  the  reduced  rates  at 
which  this  tic  let  is  sortd,    the  holder  thereof  a:jreGS  to  and  T;ith  the  sev- 
eral co'icpanies  over  -..hose  lines  this   ticl^et  entitles  him  to  te  carried, 
as  follo-i7s,    to  wit:      (1)   That  in  sellins  this  ticlcet  the  Ilissouri,  Ean- 
sas  and  Terras  Ey.   Co.   acts  only  as  asent,  and  is  not  responsible  beyond 
its  ovm  line.'     V/e  find  further  that  the  evidence  sho\.'ed  Greenville   to 
be  a  coopcfcin^'  point  for  the   transportation  of  passcuG.'C'i'^,  and   tliat  ap- 
pellant Icept   its  depot  open  ni^ht  cjid  day  for   Cie  accoraodat iou'xf  persons 
desiring  to  take  passage  upon  its   trains,  and  that  its  passengers  would 
frequently  50  to   the  depot   in  the  daytinB   ,   and  av^it  the  departure  of 
its   trains  at  12  o'clocl:  at  ni^it .     Agents  vrere  Icept  in  charge  of   the^ 
depot  both  day  and  night,   and  pascea^'ers  \;ere  received  in  tl3  depot  with- 
out regard  to" the  len:,tli  of  tiioe  before   the  departure  of  trains.''     Tl^io 
facts  above  cited  \.ere  proven  upon  the   trial. 

Conclusions   of  Lav/. 

Th.0  first  proposition  ur^-ed  by  appellant   is   that,   under  the  facts 
of  this  case,  appellee  has  not  the  ri^ht  to  prosecute  this  suit  \/ithout 
being  joined  by  the  husband.      Eic  \.lfe  had  been  abandoned  by  the  husband 
for  nearly  a  ycc-.r.     Six  vas  Isf tyathout  any  means  of  support.     'J5ie~sep-  1^1_ 
gl-atlon  \vas~\dthout  her  fault ,    end  pornsnent.     Tliis  state  of  f acTs~cIe"ar- ^q 
ly  save  her  the  rijit   to   sue    alone.     Ezell  v.  Doc'.son,    60  Te:;.   C3l;  Davis  w 
vTTaladeo,   57  Tor..   526;  ZimpeimanTnTobb,   55  Te::.  261;  Harris  v.  "^Fil-  V».•^K. 
liams,  -a^.-  To::.   124;  VTrisht  v.  Kays,   lO'  Te::.   150;   Cheeh  v.  Bello\TS,   17 
Ter..   615;  Fuller  ton  v.  Doyle,   18  Te::,  4. 

Appellant  cla  ir^    that   tlie  cmouut   of  dDmajes  avsrded  is   e::cesEive. 
V.'e  cannot  ag^ree  to  Giis  proposition.     Actual  damages  alone  have  been 
a\;arded,  and  \;e  cannot  say  that  tlie  amount    is    in  e::cess  of  the  injury 
inflicted.     Judgment  affirmed.  ,_  ^^  ,^  v  \  ^   ^ 


290. 


EIDIK  V.  rEGAH  et  al. 

(Supreme  Court   of  California.     Nov.    5,    1896.) 

(ITO.      16,019.)    (114  Cal.    667) 
(46  Pac.    920.  ) 

Commissioners'    dccicion.      In  bank.     Appeal  from  superior  court, 
city  and  county/  of  San  Francisco;   J.   LI,   Seawell,   Judge. 

Action  by  Ilatthias  Bider  against  James  Regan  and  others  to  foreclose 
a  mortgage.     Defendant  Edv;ard  Kelly,  lay  his   guardian  ad  litem,   alone  ans- 
\/erod,   and  from  a  decree  of  foreclosure,   and  from  an  order  denying  his 
motion  for  a  new  trial;    appeals.     Affirmed. 

Vanclief ,    C.     Action  j^njTfvrgcl o!^r  a jrinTrJ-gage  e-^ecuted  •bgL-de£eadaat 
^e£g-o   tn  r.p.auvp.  j.-^yment   of  hJ.P  promissory_npte^_jggdejpaya'ble    to  plain- _ 
tiff  or   order,   for  the  sum  of  §1,500,   \ath  interest  thereon  at  the  rate 
^  8  per  csat.  per  i^nnum.     Th^  defendants  ndv;ard  and  Ilary  Kelly  are  hus- 
band and^^fe ,  "^d    w'ere  made  x^artijt  defendant  on  the  grouixl  that  they 
claimed  some^int'5re^~tH~Dr~tr6n"  upxjn  tlie  mortgaged  premises,  r^iich  con- 
sist of  a  lot  6f"~land  35  "by  80  feet,   vath  appurtenances,    situated  in  the 
city  of  San  Francisco.     Ed-.7ard  Kelly  alone,  by  his  guardian,  ad  litem  (he 
being  insane)   answered  plaintiff's  compiaint,   denying  that  defendant 
Regan  ever  owned  or  had  any  authority  to  mortgage   the   lot,   and  alleging; 
that,   at  Gie   time   the  mortgage  v/as  eiuecuted,  he    (Kelly)  vras,  and  ever    • 
since  had  been,   sole   ovner  of  the  mortgaged  premises.     He  also  filed  a 
cross  complaint,   the  substance  of  v;hich  is   that  in  October,    1877,  TSiile 
lie  and  defendant  Ua-iy  G,  Kelly  were  husband  and  wife,  he  purchased  the 
mortgaged  lot  with  money  earned  by  him  during  the  marriage,  and  that  it 
thereby  became  community  property   of  himself  and  wife;   that  in  June, 
1880,   v&ile  he,  with  his  wife  and  family:   were  residing  on  said  lot,  she, 
in  due  form,  made  and  recorded  a  declaration  of  homestead  thereon,  which 
ViELs  never  abandoned;    that   in  August,   1884,  he.   after  due  examination  be- 
fore  tlie   superior  court,   vns  found  to  be  insane,   and  by  order  of  said 
court  was  committed  to  the   insane  asj'-lum  at  Hapa,   Cal.,   and  is  now,   and 
ever  siixe  has  been,   confined  in  said  asylum,   and  during^  all  that  time 
has  been,  and  is  now,  hopelessly  insane     and  incompetent   to  transact  any 
business.     These  facts  alleged  in  the   cross  complaint  were  found  by  the 
court  to  be  true,  and  are  not  questioned.     !Ihe  follo\;lng  additional  facts 
appear  by  the  record,  and  are  undisputed:      In  October:,    1883,   vhile  de- 
fendant Edv-ard  Kelly  was  sane,  lie  and  his  v.lfe  executed  a  mortgage  on 
said  homestead  lot   to  secure  their  promissory  note  for  v^OO?  payable   to 
the   German  Savings  L  Loan  Society  one  jrear  after  date.     In  Ostober,    1888, 
suit  v;as  commenced  to  foreclose  this  mortgage,   and  \,hile  it  vjas  pending, 
to  v;it,    in  December,   1888,   the  defendant,  Tiiry  C.   Kelly,   filed  in  the 
superior  court  her  petition  praying  for  an   order  authorizihg  her  to  sell 
said  homestead  premises  pursuant  to  an  act  of  the   legislature,   entitled, 
"An  act  to  enable  certain  parties  "therein  named  to  alienate  or  incumber 
homesteads,"  approved  Ilarch  25,    1874.     St.   1873-74,   p.    582.      It  is  ad- 
mitted that  her  petition  stated  all  the  requisite  facts,  according  to 
said  act,  and,   among  them,   tliat  neither  said  Edward  nor  liiry  C.  Kelly 
had  any  means,   property,    or  estate  except  Said  homestead  premises  and  a 
fe\/  articles  of  homestead  furniture  and  wearing  apparel;    tliat  said  llsxy 


291. 

was  depeiideGt  for  the  support  of  herself  ard  three  minor  female  children 
offspring  of  the  ixarriage,  upon  the  asGistaxi.oe  of  her  relatives;  and  fh&K 
her  husband  had  no  relatives  in  this  state  except  caid  female  cliildrcn,^ 
Notice  of  the  application  was  putlinhsd,  and  also  personally  served  on  l>.*; 
piTblic   adminisi-.rator,  as  requi.red  by  the  second  section  of  the  act,  and 
the  public  administrator  appeared  by  cour-.^el  for  Edv^rd  Helly.     After 
hearing  the  court  made  an  order  authorizing  the  petitioner  to  sell  the 
homestead  premises.     Thereafter,   on  Ap.-il  11,   1389,  Mary  C.  Zelly,   by 
deed  of  grant,   bargain,  and  sale,  ccaoveyed  said  homestead  to  the  defend- 
ant James  C.  Regan,  who  on  I.Iay  4,   1089,   er.ecv.ted  to  plaintiff  the  mort- 
gage to  foreclose  which  liiis  action  -v^as  brought.     The  court  below  found 
that  on  Hay  4,    1889,  v/hen  the  mortgage  in  suit  v/as  executed,  the  defend- 
ant Edv.ard  Zelly  "had  no  right,   title,    or   interest  in.    or  claim  to,"  the 
mortgaged  premises,  and  decreed  a  foreclosure  of  the  mortgage  as  prayed 
for   in  plaintiff's  complaint.     The  defendant  Edward  Helly,  bjt  his  guard- 
ian ad  litem,   appeals   from  the  judgment  and  from  an  order  denying  his 
motion  for  a  new  trial. 

1.   It   is   admitted  by  coimsel  for  appellant  that  all  the  proceedings 
by  which  the   order  purporting  to  authorize  ilary  C.   Zelly  to  sell   the  home- 
stead was  obtained  \ieve  regul.ar,  and   in  strict  accordance  with  said  act 
of  March  25,    1874.     But  he  contends  that  said  act  is  unconstitutional  and 
void,  for  the  reason  that  a  sale   of  a  horre stead  in  accordance  therewith 
deprives   the   insane  spouse  of  a  vested  right  to  property  t/ithcut  his  con- 
sent, and  without  due  process  of   law.     Ard  whether  it  does  so  or  not  is 
the  principal  question  for  decision.     The   J.egislat'are  has  not,   by  the 
act   in  question,   encroached  upon  the  judicial  department.      It  has  adjudged 
nothing.     The  act   itself  does  not  directly  deprive  the   insane  spouse  of 
any  right.      It  merely  declares   that  upon  a  specified  state  of  facts.,   to  be 
founi  by  a  court,    such  court  may  authorize  the  sane  spouse   to  sell  the 
homestead  property.     The  first  section  of  the  act  is  as  follows-.      "Section 
1.     In  case  of  a  homestead,    if  either  the  husband  or  wife  shall  becone 
hopelessly  insane,  upon  application  of  the  husband  or  wife,  not  insane, 
to  the  probate  court  of  the  county  in  vhich  said  homestead   is  sitra-ted, 
snd  upon  due  proof  of   such  insanity,   the  court  may  mate  an  order  permit- 
ting the  husb.-md  or  wife,   not   insane,    to  sell  and  conrey  or  mortgage  such 
homestead."     The  second  section  provides  that  notice  of  the  application 
shall  be  published  for  three  weeks   in  a  nev/spap'^r,.  and  personally  served 
on  the  nearest  male  relative  of  the  jnsane  spouse  to  be  found  in  the 
state,   or,   if  no  mole  relative  be  laio\m  to  reside  in  the  state,   then  uSJoa 
the  public   administrator,    three  weels  prior  to  the  application,   vhose 
duty  it   shall  Tie   "to  appear  in  court  and   see  that  such  application  is 
made   in  good  faith,   and  that   the  proceedings   thereon  are  fairly  conducted." 
The  third  section  indicates  generally  what  the  verified  petition  of  the 
applicant  shall  contain,   besides  requiring  that   it  specifically  set  forth 
the  age  of  the  iuj.ane,   the  number,   ag'?,  and  sex  of  the  children  of  suJh 
insane  husband  or  w:".fe,   a  description  of  the  homestead,  and  the  value  of 
the   same,   and  such  other  facts  as  relate   "to  the  circumstances  and  neces- 
sities  of  the  applicant  and  his  or  her   family  as  he   or  she  may  rely  upon 
in  support  of  the  petition."     The  fourth  section  provides  that,    if   the 
court  make   the  order,   any  sale,  comreyanco,   or  mortgage  irade  in  pursuance 
thereof  shall  be  as  val:".d  and   effectual  as  if   the  property   tliereby  affect- 
ed was   the  absolute  property  of    the  person  making  such  sale,   conveyance, 
or  mortgage.     The  fifth  section  provides   that  a  fee  not   exceeding  4^20  be 


292. 

Paid  tlifi  public  administrator  for  hie  services   in  any  case  UEder  the  act. 
The   Ei:rth  section  expressly  repeals  all  acts  and  parts  of  acts   in  con- 
flict with  this  act.     Conceding  that  the   insane  husband  had  a  vested 
property  rijht   in  the  homestead  premiees,  and  even  that  it  extended  to 
absolute  ovmership  thereof   (vhich  is  not  admitted),  yet  "all  vested 
property  rights  are  held  subject  to  the   laws  for  the  enforcement  og  pub- 
lic duties  and  private  contracts,  and  for  the  punislment   of  v/rcngs;   and, 
if  they  become  divested  throu^  the  operation  of  those   laws,    it  is   only 
by  v;ay  of  enforcing  the  obligations   of  jTistice  and  good  order."     Cooley, 
Const.   Lim.    (6th  Ed.)  p.  438.     The  statute   in  question  is  a  general 
remedial  lav?,    intended  to  enforce  the 'I6gar"6brilat"ibn'bf  a  hopelessly    -C 
ffi5arre~lra!5band~or  \;ife  to  apply  his   or  her  property,    in  case   of  necesETity,- 
to  the   cupport  of   the    saa:^   '.;ife  or  husband  and  their  minor  children,   and — 
the^refore   is  no  more  objectionable   on  constitutional  grounds  than  vx>uld 
be  a  statute  to  enforx^e -the  performance  of  any  other  private  or  public 
duty  or  ubligationj.     After  stating  the  rule  that  private  property  cannot, 
by  either  a  general  or  special  enactment,  be  taten  from  one  person  and 
transferred  to  another  for  the  private  use  and  benefit   of  such  other 
person.  Judge  Cooley  says-.      "nevertheless,    in  many  cases  and  many  ways 
remedial  legislation  may  affect  the  control  and  disposition  of  property, 
and   in  some  cases  nay  change  the  nature  of  rights,   give  remedies  v;hBre 
none  existed  before,   and  even  divest  legal  titles   in  favor  of  substan- 
tial equities,   where  the  legal  and  equitable  rights  do  not  chance   to 
concur   in  the  same  persons."       Page  436.     Uor  can  it  be  truly  said  that 
the  procedure  prescribed  by  the  act  in  question  is  not  due  process  of 
law.     The  usual  and  only  practical  kind  of  notice  of  the  wife's  petition 
\vas  given  the  insane  defendant  by  publication  during  a  reasonable  period 
of  time,   and  by  personal  service  of  lite  notice  on  a  public  officer,  v;ho 
pro  hac  vice  was  constituted  guardian  ad  litem  of  the   insane  defendaxit, 
and  upcm  whom  vas   imposed  the  duty  of  appearing  for,  and  protecting  the 
rights  of  his  ward,  and  who  in  this  case  did  appear  for  him  by  counsel. 
The  cause  va.s  heard  ard   the  facts  found  by  the  court  before  judgment  was 
pronotmced,  and  it  is  not  questioned  that  the  facts  proved  and  found 
justify  the   judgment,   as  tested  by  the  provisions  of   the  act  in  question. 
If  this  was  not  due  process  of  law,    in  the  constitutional  sense,   it 
v-xjuld  seen  difficult,    if  not  impossible,   for  the   legislature   to  provide 
due  process  by  v.hich  the  property  rights  of  an   insane  person  could  be 
affected  in  any  cas@.     The    insane  defendant  is  afforded  all  possible   op- 
portunity to  be  heard  in  defense   of  his  rights.      In  addition  to   the 
guardian  ad  litem  provided  by  the  act,    the  court  at  request  of  appel- 
lant's wife,   appointed  the   learned  counsel  for  appellant   to  that  office, 
who  appears   to  have  ably  and   zealously  perfoiroed  the  duties   thereof, 
both  in  the  court  below  and   in  this  court. 

3.   It  appears  that  the  defendant  Regan,   to  vhom  the  homestead  prem- 
ises were  sold,   vas  a  brother  of  the  defendant  Mary  (J.  Kelly,   who  sold 
it;    that  her  deed  to  Eegan  recited  the  consideration  therefor   to  have 
been  $5,   which  v;as  not  paid;    that  Regan  mortgaged  the  property  to  plain- 
tiff to  secure  a  loan  of  $1,500,   which  he  borrowed  from  plaintiff;    that, 
of  the  $1,500  so  borrowed,  0^00  was  applied  by  Hary  C.   Kelly  to  the  sat- 
isfaction of   the  aforesaid  mortgage  e::ecuted  by  her  and  her  husband  to 
the  German  Savings  i  Loan  Society  in  October,   1883;   that  the  remainder 
of  the  money  loaned  to  Regan  by  plaintiff   ($900)  was  given  to  I'jrs.   Zelly, 
and  she   loaned  it  to  Regan;  and  tliat  afterwards  Regan,   for  the  consider- 


293. 

ation  of  love  and  affection,   conveved  the  homectead,  subject  to  his  mort- 
gage to  plaintiff,   to  Ms   sister,  i:ary  C.   Knily.     Couusel  for  appellant 
contends  that  the  sutstanoe  of   these  t  ran?;  act  ions  \7as  a  mortgage  of  ths 
homestead  by  Mrs.   Kelly   to  the  plaintiff,   through  the  agency  of  her  bro Li- 
ar, and  not  a  sale  to  her  brother,  according  to  the  purport  of  her^deed 
to  Mm,   ard  therefore  was  not  authorised  by  the   order  of  the  com-t^   vhich 
merely  authorized  her  to  sell,   and  not   to  mortgage,    the  homestead.     Con- 
cediEg  all  this,   fee  rights  of  the  plaintiff  as  mortgagee  are  not  thereby 
affected,  unless  he  l:ad  actual   or  constructive  notice  of  the  alleged 
character  of  the   transactions  by  and  between  Regan  and  Ilrs.    Kelly.     Tiiere 
is  nothing  tending  to   pi'ove  etch  co::^ true tive  notice.      'She  deed  from  Jlrs. 
Kelly  to  Regan,   as  previously  recorded,   both  literally  a:id  Ei*ctantially 
confomed  to  the   ordor  of  the  court.     It  purported  an  absolute  sale  to 
Regan,  and  nothing  of   its  contents  indicated  anythiiig  different.     As  to 
actual  notice,    it    is  stated  in   the  bill  of  er.ceptions   that  it   v.bs  proven 
that  at  the  time  of  the  e::ocution  of  the  mortg?ige  by  Regan,  and  at  the 
time  of  the  loan  of  0l,5OO,    "plaiatiff  had  no  Iniowtedge  of  any  agreement 
betv>n3en  the  defendants  Regan  and  Ilary  C.   Kelly,  but  at  all  of   said  times 
believed  defendant  Regan  was   the  absolute  ovr.er  of   said  propert^r,   in  ac- 
cordance with  the   terms  of  the  deed  of  Ilary  C-  Kelly  to  him,    said  Regan. ^' 
V/hethor  or  not   the  appellant  has  suffered  injury   inconsequence  of  the 
transactions  herein  above  stated,  f o  r  v;hi  ch  he   is  entitled  to  any  remedy 
againsjr  others   than  the  respondent,    is  a  question  not   involved  in  tliis 
appeal.      I  think  the   jua.gment  aixL  order  cqppealed  from  should  be  affirmed. 

V/e  concur:     SEARIS  ,   C;  H-'.YIZS  ,    C. 

HcFarland,  Van  Fleet,   and  Garoutte,   JJ.     For  the  reasons   given  in 
the  foregoing  opinion  the   judgrent  and   order  appealed  from  are  affirmed. 
It   is   to  be  observed,  however,    that  the  proRrj'iSr-y  of  trying  appejJ.2»5^a'E 
alleged  title  in  this   action  \^as  not  raised,  and   this  decision  must  not 
be  talcen  as  authority  for  trying  adverse  axf.  paramount  titles   in  an  action 
to  foreclose  a  mortgage. 

Beatty,   C,   J.      In  concur   in  the  judgment  of  affirmance.     It   is   not 
necessary  to  decide  or  to  consider  in  this   case  viiether  the  set  of  1874 
is  constitutional   or  not,  as   applied  to  homesteads  created  b^r  the   sole 
declaration  of  one  spouse  upon  separate  property  of  the  other.     The  case 
here  is  of  a  homestead  declared  upon  community  property  acquired  subse- 
quent to  the  passage  of  the  act  in  pm-surnce  of  vhich  it  was  sold.     If 
the   legislature  has  the  por/er   (as  unquestionably  it  has)   to  provide  gen- 
erally for  tho   alienation  of  ccmitiunity  property  by  the  husbaiid  alone, 
and  his  control  of  tte  proceeds  of  tlie   sale,    I  can  see  no  reason  why  it 
has  not  the  power  to  provide,    in  caso  of  the  hopeless  insanity  of  the 
husband,   for  the  al.ienation  by  the  i/ife  alone  of  so  much  of   ihe  coanunity 
property  acquired  subsequent  to  the  passage  of   tie  act  as  may  have  been 
lawfully  dedicated  as  a  homestead.     So  far  as  the   act  of   1874  goes  beyond 
this  proposition,   it  may  bo  seriously  doubted  wh^tiier  it   is   operative, 
but   I  can  see  no  reason  to  refuse  to  give   it  effect  in  a  case  not   involv- 
ing any  question  of  vested  rights. 

rlenshaw,   J.     I  dissent,  under  the  conviction  tliat  the  act  in  question 
is  unconstitutional.     Section  1   (Act     March  25,    1874)   of  that  act  is  as 
follo-,;s:      In  case  of  a  homestead,   if  eitli3r  the  husband  or  the   wife  shall 
become  hopelessly  insane,  upon  application  of   the  husband   or  v.if©  not   in- 


294. 

sane   to  the  Froliat?.  court  of  tte  county  in  \7hich.  cr.id  hoirestoad  is  sit-?.- 
ai-cd,   and  iipon  due  proof  of  piioh  inpaxrlty^   tts  court  may  make  ar.  order 
peni-ttiag  tho  litis ciiZ'.d  ov  vdfe  not   inn;3ae  to  S9.1'>.  or  c  cnvey   or  mortgage 
siJoli  hoT.es tear'..  "    Section  ;?  ;prOTid8fj  for  puWJoation  a'o.i  f3rvice  of  Eoba-.:  . 
of  tb3  applirsaticT..     i)eoticr}.  o  raairas  necossax-y  the  filing   oi'  a  patitica, 
DEd  rroscrite^  what  it  sl-.all  c-.:xr.aiTi.     S-^ctica  4  tt.Rclaicss  thai,    if  t"ie 
cor.  rl   ^iall  maT<-o   tlie   orde.'  cor.terfvpllated  by  cc-ccSon  1,   the  sane  shall  lie 
eutijred  upon   Q:e  ir.innten,   and  thereafter  an;y  sale,  coTveyacce,   or  rjori- 
gage  ra.d©  in    piii"£;ai:.ij~ce  of  5i;ch  crrtcr  siall  to  as  vaJyZ.  and  C:f  focUial  a'3 
if    the  propeT'.-y  aifeotofi  there'by  wcr:   tfjo  iim-orxce  pj-operty  cf  the   perforti 
xnakiBg  ET;ch,sale,   cariyeyaace,   ot  mo rt stage  i-v  -lee  siiaple-     It  is  fiiso  ';o 
Tdo  noted  thai  feie   stat.;ii;e  is  applics.bl'o ,  not  to  a'ay  particular  c.T^es  or 
Icini   of  horcsstcadr;,  "but    tc  all  lienor  toad ;3,    rfesfrer  der/iared  upon  comnun.- 
ity  prope-i'ty,    cr  upon   iho  separate  property  cf  one  or  otlx^r  of   the  spou'^e.'^ 
v^ether  declared  ty  their  joint  act,    or  liy  trie  act   of  eittor.     V/hile    the 
hocestead  exeiipiion  is  only  to   the  amount   of  $5,000,   yet  real  property 
of  any  value  iriay  be  impressed  with  the  hnne~tead  oharuct-er;  and,  when  so 
impressed,    th?t  cnaractcr  attaches   to   all  of  the  property.     Tiuc,  a  home- 
stead inay  be  doclaved  upca  the  separate  property  of  t]io  vafe   of  the  -^alue 
of  ^-40,000  or  $50,000.     i'hould   the  mfe  "cecone  hopele-r^sly  insane,   that 
homestead,    at   the  icr, tigo/tion  of  the  h-:islx-'nd,  coul'I  "be  ;^ubjected  to  sale. 
Next,    it    is   to  be   otieerved  that  the  ai-.thori  cy  to  oi-der  the  sale   is   not 
rcade  to  depend  u?;)c.i  a  determined  need  or  advisabjlit^r  therefor.     Ho  ques- 
tion of  the  receit;ifcy  oi"  the  support  of  the  sane  or  inr..ane  siJoase ,   or  of 
minor  Chi Idxen  or  cQiex  dcpex-dect  perrons,   is  necessarily  involved.     Ihe 
bald  fact  that   one  par'.y  to  a  marriage  has  becorse  hopelecsly  insane,   and 
that  there  is  a  hoirestead,  whether  npm  cnfmr.ujiiiy  propGfty,   or  upon  the 
separate  property  of   the   insa^ie  cpov.se,    xs  all  that  is  necessary  to  war- 
rant  the  order  of  sale.     Again,    it  i3  to  be  reon  tfiat  the  act  nates  ab- 
solutely no  provision  for  dir.tritu.tion  or  di  spoi-ji  tion  of  the  fm-.ds  aris- 
ing from  the   sale.     The  pover  of  the  court  cea.^es  \;hen  by  its   order  it 
authorizes  the  sale  to  be  rcade.      The   intrii-est  of    chc   insane  pex-son  is   in. 
no  way  protected,     neither  the  money  received,  n.?r  any  p.arc  of  it,   is 
required  to  be  devoted  to  his  support,    or   to   tlie  snipport  of  any  person 
dependent  upon  hjn.     The    result  might  bo,  as   in  this  case  it  was,    that 
the  property  of  ihe   in«:rne  o^-aier  \\'?.3  so^d,  ojid   the  Jioi-eys  turned  over  to 
a  tliird  person,   who  had  not   the   sliglrtest   legal  olain  apsm  hiii  or  it. 
There  are  yet  other  rr-itters  in  \-tiich  thia  a'-.t  is  at  Xea;:-t  peculiar.     Eot 
only  does  it  aut3ior:.ze  vhe  sale  of  the  IfXid  of  an  insane  person,  -.vithout 
protecting  his   i:o.t evened   in  the  proceed^s  of  tri.e  r.a?.c,  hut   it  fails  oven 
to  provide  for  tiie  appearame  of  a  gjardian.      i'he  proc.eec'''ings  are  begxm 
and  the   sale  irade  by  a  i?erson  standing  ii";  no  fidu-iia'^y  relation  to  him. 
There  is  no   sipervision  by  the  court  of  tlie  r;ale .     E'-i  bond  is  eijracted  of 
the  seller.     (Ihe   sale  ray  bo  a  gift,  as  in  fact   13.iis  wars,    or  the   price 
may  be  entireily  ina-^ curtate .     Yet  no  one   is   empovered  to  check  any  fraud 
vhich  may  be  corjtjticd  upon  the  uuf or tua^ty  ovr-er.     He   is  stripped  of  his 
property,  wxtiiout  hearing  and  withoirt;  redress,   becauae,  having  a  horce- 
stead,  he  has  become  insane, 

There  is  a  tpecies   of   legislation  to   vhich  Judge  Cooloy  has  given 
the  name   "prerogative  remedial    Jegislation, "   t'l^t   i.-3  not   obrjoxious    to   the 
law.     It   is  based  upon  the  recognised  power  of  tne  legislature,   as  parens 
patriae,    to  pass  proper  rules  and  regulations   for   superintendence,   dis- 
position, and  rDai:ageir.ent   of  the  property  ox    infants,   lunatics,  and  others 


295. 

under  disability.     V/iGiin  the   legitinate  scope  of   such  legislation  is  the 
pov.cr  vhidti  nay  bo  c  cnf  erred  upon  one  standing  in  a  (fiduciary  relation  to 
a  minor  or  incompetent   to  chanse  the  daaracter  of  the  estate,   and  oven  to 
dispose  of   its  proceeds,  \.'hen   it   is  to  the   interest   of  the  minor   or   in- 
competent that  svch  should  be  done.     But   in  all   Euch  legislation  there  is 
no  determination  of  adversary  ricJits,   no  deprivation  of  any  perscn  of  his 
property.     Says  Judge  Cooley:     "Tliis  species   of  legislation  iray  perhaps 
be  property  called   'prero.3ative  remedial  legislation.'      It  hears  and  de- 
termines no  rights.     It  deprives  no   one  of  his  property.      It  simply  auth- 
orizes  one's  real  estate   to  be  turned  into  personal."     Cooley,  Const.   Lim. 
p.   122.     In  Paty  v.  Smith,   50  Cal.   153,   this  court  gravely  doubted  the 
poiTor  of  the  legislature  to  direct  a  sale  of  the  real  estate  of  an  infant 
by  one   other  than  a  duly-appointed  guardian,     Thataaot  provided,  however, 
that  the  person  making  the   sale  should  account  for  the  proceeds  to  the 
probate  court,   caad  tl^is  court  assumed  that  the  statute  contemplated  the 
appointment  of  tlxtt  person  aS  guardian  by  the  probate  coiart.     In  Brenham 
v.  Datidson,   51  Cal.  352,    the  act  under  consideration  authorized  the  guard- 
ian of   an  infant  to  sell  the  real  estate,  subject  to  the. approval  of  the 
probate  court,   for  the  purpose  of  enabling  the  guardian  to  reinvest  the 
proceeds   in  other  property  for  the  benefit  of  the  v.ard.      It  v/as  declared 
that  SLChan  act  vac  not  an  assumption  of  judicial  pa.er  by  the   legisla- 
ture, and  this  court  quoted  \7ith  approval  the   language  of  Judge  Cooley  to 
the  follomng  effect:     "The  rule  upon  this  subject,  as  v;e  deduce  it  from 
the  authorities,   seems  to  be  this:      'If  the  partjr  standing  in  position  of 
trxistee  applies  for  permission  to  mate   the  sale,   for  a  purpose  appar^itly 
for  the  interest   of  tJie  cestui  que  trust,   aiiL   there  are  no  adverse   inter- 
ests to  be  considered  ard  adjudicated,   the  case   is  not   one  v/hich  requires 
judicial  action;  but    it  is  optional  v/ith  the  legislature  to  grant  the  writ 
by  statute,   or   to  refer   the  case  to  the  courts  for  consideration,   accord- 
ing as  one  course  or  the  other,   on  consideration  of  policy,  may  seem  de- 
sirable.'"    But    in  ttese  cases,  and   in  the  many  others  which  v/e  have  ex- 
amined from  sister  states,    the  acts  have  been  upheld  because   it  v/as  appar- 
ent from  them  tha^  the   interest  of  the  minor  or   incompetent  was  fully  pro** 
tected,  and  Giat  the  statutes  were,   in  their  operation,  benef ic«itnt.      Thus, 
in  Rice  v.  Partean,   16  Mass.   326,   the  court   says:      "Ihe  only  object  of  the 
authority  granted  by  the  legislature  was  to  transmute  real  into  personal 
estate  for  purposes  beneficial  to  all  vho  v/ere  interested  therein.   *  *  * 
No  ono  imagines  that  unier  this  32neral  authority   the   legislature  could 
deprive  a  citizen  of  his   estate."    Authorities  need  not  be  multiplied  up- 
on so  plain  a  proposition.     V/e  are  here  confronted  v/ith  an  act  entirely 
different  in  character,  an  act  v/hich  assimes  to   authorize  one  not  stand- 
ing in  a  fiduciary  reiition  to  the  incon^etent    to  rnals    a  sale  of  his  real 
estate  for  purposes  not  connected  with  the  incompetent's  interest,  neces- 
sities,   or  convenience,   and  without  makingr  any  provision  to  secure  to  him 
his  just  share  of  the  proceeds   of  the  sale.     V/e  are  not   in  this  concerned 
with  a  definition  of  the  particular  chax-acter  of  the  wife's   interest  in  a 
homestead  declared  upon  the  community  property.     Y/hether  that  interest 
amounts  to  an  estate,   or  vhether   it  bo  a  mere  expectatcy,   it  is  unquestion- 
ably true  that  the  husband,    in  vhora  is  vested  the  sole  right  of  control 
and  disposition  of  tlB  cora.:iunity  property,  has  a  legal  interest  therein. 
Ihis  legal  estate  has  a  monej'  value.     V/hen  a  sale  of  the  homestead  is 
made,   it  involves  a  sale  of  an  estate  in  reality  belonging  to  him.     By 
the  act  under  consideration  he   is  neither  secured  in  that  property,  nor 
is   it  devoted,   of  Eocessity,    to  any  legitimate  purposes.     Our  attention 


296. 

has  not  been  directed  to  tho  decisJonc    of  an7  courts   in  v-hich  an  act  IiIkb 
this  lias  'been  corrstruod  ard  uphold;   nor  v.'ou.'ld  v;c,  againnt  the  great  \bx;^-.'. 
of  reason  a'ld  authority,  ho  inclined  to  foiloi/  thoa  if  ?x.?/  such  ooulu  he 
fourd.     Refrpoi;aont ,    it  ir,   tn^o,  malros  reference  to  tlxc  case  of  Forhas  v. 
l.loore,   52  Tox.   1&5.     It   is   there  cajd:      "Durin,?  the   InsarJty  of  the  hj.^s- 
hand  the  vafo  is  the  liead  of  the  family,   a:iu,  as  Ei;:;h  head,  h3.z  the   jagt-.! 
right  to  diopose  of  so  m.ich  of  the  cunnon  projpnrty   of  'nvs'oznl  and  \7i.fe, 
or,   in  caiie  there  he  none,   of  the  separate  pro'^or'^y  of  the  h'^sliard,   as 
may  he  renest.arj'-  to  n'';ippj.y  the  v;ant5  of  herself  and  his   or  her  children." 
But   in  the   later  case  of  Heidenheimor  v,   Thoitias,   63  Te:z.  23V,    this:   lang- 
uage  is  considered,  and  it   is   f^aid   tliat,    in  so  far  as   it  f^oerac  to   indi- 
cate a  rule  different  from  the   trie  one,    it  must  he  regar-led  as  o!-il?.r, 
and  of  no  hxnding  iorco.     And  in  P.aix.vay  Co.  v.  Bailey,   6-3  T°-x.  19,   ]8 
5.  W.  432,    the  court  quotes  v/ibh  approval  the   laaguage  of  HoldenheiTrier  v. 
(Hioraas,   cupra;      "'..'e  are  of  the  opinion  that  no  suVn  po^.-er  rests  in   -ht? 
wife  of  an  insane  person;  at  least,    in  reference  to  community  pi-operty, 
or  the  separate  property  of  the  hush^rd.     Eie   law  provider^  for  jai  t  nuch 
a  case,  and  renders  unnecessary   the  exercise  of  an^'  sUvVn  povver  by  the 
Vidfe."     v;e  ai'e  not  aaere  called  upon  to  cay  v.hether  or  not  tie   legislature 
lias  the  po'.v-er  to  acoonplish  v;hc.t  ceeni    to  hp^e  been  the  principal  piirpose 
of   this  ac:t,  namely,    to  subject  the  corjmunity  property  or  the  separate 
property  of  an  insane  spouse  to   the  siVPpcr-c  of   those  legally  deponlont 
upon  hijn.     It   is  enough  to  say  that  the  abrtrnpt  which  finis  expression 
in  an  act  such  as  this   is   inadec^uate,    improper,  and  unccn=;titutioual,   and 
amounts  to  but   the   confiscation  of  the  property  of  a  person,  without  pro- 
vision for  the  distribution  of  that  property,  ard  for  no   other  reason  as- 
signed than   that  te  has  met  -./Ith  the  most   lamentable  misfortune  of  becom- 
ing hopelessly  insane.     The  judgment  and  order  sliould  be  reversed,  and 
the  caoE©  remanded.  .  _ 

We  concur:      lEIlLE,   J.;  H.'J^S15CffI,   J.  ---  _,     "^ 


^^ 


297. 


y/orj)    V.    EnmoN. 

(Court  of  Civil  Appeals  of  Texas.     June 

3,   1903.) 
(73  S.T7..   334.  ) 

Appeal  from  Sutton  County  Court;  H.  C.  Bavifson,   Judge. 

Action  Tsy  I.Irs.  M.  A.   Kennon  against  0.   T.  V/ordt.     From  a  judgment   in 
favor   of  plaintiff,   defendant  appeals.     Affirmed. 

Ply,  J.     Appellee  sued  appellant  to  recover  10  I^ead  of  horses ,_  or 
tai§irj?;alue,,  a^_^50_each.^_axicL_iia^a   trg^l^t^^  avKirded  a  verdiet 

for  the  prppextSL, -upen-'i'ivi^h.-was  rendored— fee -judgEeent  f  r cm -v/hi di  _tJiis 
appeal  has  "been  perfected. 

It  was  alleged  in  the  petition  that  D.  D.   Kennon,   the  husband  of 
appel lee_,  fcad^permaaentjy _  al;^"-n rJ nnad  h&r ,  vji  ^>i on  i  f  au  1 1   on  her  part,_and 
IJedll^t   ©le  state,    and  this  was  a  siifficient  allegation  to  clothe  her 
vdjth^thority  to  institute  suit   for"  the  oominunity  property.     Railway -v. 
Henneseyr^O  Te^.   Civ.  App.   516;   49  S.  V/.   917 r~        '~~~ — ■ 

Appellant  asl:ed  that  the  suit    in  tliis  case  "be  abated  'because   there 
was  another  suit  pending  in  the  same  court,   in  vhiah  the  matters   in  this 
suit  could  have  been  litigatfed  and  determined.     Ho  action  appears   to  have 
be^i  taken  on  that  plea,  and  there  is  nothing  in  the  record  to  sirtain 
the  complaint   that  it  was  overruled.     It  must  he  presumed  that   it  vas 
abandoned. 

It  v/as  not  error  to  exclude  evidence  as  to  what  appellant  stated 
about   it  beiiig  just  as  easy  to  get  50  cents  a  head  for  par-turage  of  the 
hourses  as  25  cents.      It  could  have  no  possible  bearing  on  the  case. 

The   tenth  assignment  attacl^s  the  exclusion  of  testimony  offered  by 
appellant  as  to  a  conversation  between  him  and  D.  D.   Zennon.     In  the  as- 
sigiament   of  error  the  third  bill  of  e::ceptions  is  referred  to  as  contain- 
ing the  cotwersation  desired  to  be   introduced,  but   in  a  statement  made 
in  tlie  brief  an  effort  is  made  to  extend  it  to  another  conversation  con- 
tained in  another  bill  of  exceptions.     The  assigament  vdll  be  confined  to 
the  error  of  vhich  complaiit  is  made.     It  is  not  ^^/ell  talsen,   for   the  reas- 
on that  appellant,   in  hie  answer,   claimed  to  have  bought  the  horses  of 
D,  D.   Ifeiinon;   but   the  conversation,  had  it  been  admitted,   sho-wed  that  no 
sale  \/as  ever  consummated,   and  consequently  its  rejection  could  not  have 
injured  appellant.     The  conversation  set  out   in  the   other  bill  of  excop- 
tions  above  raentioned  did  not  show  a  consummated  sale,  because  no  price 
was  ever  agreed  on  between   the  parties.     The  evidence  leads  to  the  ir- 
resistible conclusion  that  appellant  had  never  bouglit  the  horses. 

The   introduction  in  evidence  by  appellee  of  her  mortgage  on  the 
horses  in  controversy  to   one  I.icCrohan  could  I&ve  had  no  possible  bearing 
on  the  case,   and   it   should  not  have  been  admitted.     Still   there  is  noth- 
ing- to   indicate  tliat   it  had  any  effect  on  the   issues  in  one  v/ay   or  an- 
other.     It  must  be  presumed  that   ti:ie  jury  had  average  intelligence,  and. 


298. 

if  s«5h  v/as  the  case,    the  evidence  could  not  have  influenood  tlieir  verdicr.. 

The  evidence  totally  failed  to  establish  tliat  appellant  had  purcha'^ty". 
the  horces,  aad  it  v;ac  not  error    to  assume   tiiat  therejwas  no  sale  ^^  and   to 
instrixt  tio   jury  to  find  in  favor  of  appellant  for  th e pasturage . 

The   special  charges  asl:ed  by  appellant  were  properly  refused.     Appelc 
lant  claimod  to  ovm  the  horses,  and  he   couH  not  shift  his  position  by 
meaas_of_a-j&h.arse .     Heather  of  the  charges  contained  the   law  of  the  case. 

The   judgment  is  affirmed.  ^<=>  --^-~~   v*  \ 


'■'■'t'i    iz  )  >.;■  ■  ."-V  \  - : 


•?'^r  .?^:!( 


CHi.?TER  V. 


CI.   TATl   ONS. 


Power  of  wife  to  manage  or  convey. 
Hammond  v.   Jackson  (1916} 
Eodda  V.  Keeciham  (19141 
Brucker  v.  De  Hart   (1919) 
Jones,  Rosquist  v,   Kelson  (191^)- 
Stevens  v.   Kittredge   (1906) 
Wright  V.  Hays 
Cheek  V.  Bellows 
Nance  v.  Woods  (1914) 
2ent  V.   Sullivan  (1907) 
Williams  v,  Beebe   (1914) 
Palmer  v.  2JcBride   (1921) 


89  Wash,   510, 

78  Wash.  636. 
106  7;ash.   386. 

98  Wash.    539, 
44  Wash.    347. 
10  Tez.   129. 
17  Tez.    613. 

79  Wash.  188. 
47  Wash.  315. 
79  Wash.   133. 


299. 

LILIX\N  SnET^ABT)  et  al..  Appellant g,  v.   LOUIS 
CIS'LL'Vi:<}  et  al.,  Ec:.::jjc.-jde?:.ts- 

(50  -gash-    331.      1905.) 

Appeal  from  a  j'irlgrn,f?nt   of  tho  S'iperior  court  for  P':.crce  ooun^^y,    rjlj;'^- 
ford,   d'.,   entered  Sop tPinbcr  20,    1307,   upon  fin'-lj.nr:;   ja  favor  of    Ua3  uc- 
fendsnts,    upon  grgatiug  a  nonsuit^   after  a  trial   on  fiie  merits,  d:i£niissing 
an  action  for  par ti ti on .__^f filmed. 

Pullerton,   J. — !]!his_i^_an  action  for  ■yiepartition  of  real  propartj'-. 
The  facts  out  of  which  the  controversy  arises  are,   in  Euli'stance,    ':hepe: 
On  September  24,   1692,  UilliamA.  FTeei-acii^andJiis,  wif  o,  JJslie  FreecTan_j_  be- 
ing then  the    ovaers  of  the  property   in  question,  nort£;ag,-od  the   sane   to 
Robert"  ITayj^rd  to  secure  the  repayment'  v/ith  interest;_,_  of  a  loan  of  $1,500, 
made  to^fhenTby  I.'a.3mard.     Ilr.  Freeraan  died  intestate  on  February  2,    1894, 
leaviHg~"a's-hls' Heirs  at  law  tv70  darighters  and  tv.o   sons,  children  of  him- 
SHlT'and  BeIle"Fr^enian._  Ilrs.  Freeman  was  3hor"i;3.y  thereafter  appointed"  ad- 
ministratrix of  his   estate.     Tlie  tnortgafee  debt  wa.s   left  unpaid,  jard  v.'a_s 
purchased  from  Ilaynard  by  Louis  Castaing  sometime  during _the  year  follow- 
ing" ITfT"  Ff^ffiBu  '"s~d  eafir;  ' 

In  1898  Castaing  brought  a  sviit    to  foreclose  the  mortgage.     To  this 
suit  hg__nE.ae  J!rsT~lFreeman ~a  party , " bo tJiT  in.  her  official  and  'individual 
capacities,  bu€~dTd~n6t  "raahe  the  heirs;  at  l?iW  of  ilr .  Freeman  parties  there- 
tol"~The  foreclosure  proceeded  to  a  judgj-ent  and  order  of  sale  against  the 
entire  property,  and  the  property  T/as  sold  thcreundar  to  Louis   Castaing 
for  the  full  amount   of  the  mortgage  debv,   interest  and  costs.     At  the 
time   of   sale,  a  shariff's  certificate  of  sale  showing  a  foreclos'ire  of 
the  property  v.as   issued  and  delivered  to  C-a?3ta.l.Tg,  and   later,  after  the 
time  for  redemption  had  expired,   a  sheriff's  deed  vJas  executed  and  deliv- 
ered to  him.     Mr.  Castaing  entered  inro  possession  of  the  property  inmed- 
iately  on  receiving  the   sheriff's  certificate  of  .sale,   and  from  that  time 
to  tho  comiEsnceirent  of  the  present  action  lii^.s  maintained  open  ajid  notor- 
ious  possession  of   the  prcpsrty,  payir^  all  state,  county  and  municipal 
taxes   that  have  been  assessed  thereon,    stich  possession  continuing  for  a 
period  of  more  than  seven  years  ne:.Lt  after  po'5^ession  v/as  talren.     At  the 
time  the  foreclosure  procoedinss  T.Bre  institntsd,  _tv<Q.  of  the  heirs -Of 
Uilliaia  A.  F-eeiTOn  were  mi'ior^.     Tt.>e  elder  of  those  reached  the  age  of 
majority  some -four  _  years .  a  f  ler  his  father's   death,   \fciis  the  younger  was 
still  a  minor  at  the   tirre   of  the   institution  of  the  pre-sent  action. 

The  appellants  in  the  action  at  bar  are  the  children  of  Filliam  A. 
Freerran.     Hiey  sue  to  recover  a  half  inteiest  in  the   land  on  the  theory 
that  their  father's   interest  ani   title  therein  dsscS.cdod  to  them  upon  his 
dealth,   and  was  not  cut  off  by  tlae  foreclosm-e  proceedings  had  by  Castaing 
against  their  mother.     In  substaoce,   they  allege  that  they  are  the  owners 
of  an  undivided  one-lialf   intercfrc  in  the  property,  holding  the    same  as 
tenants   in  corrmon  with  the  respondents;   that  the  respondents  are   in  pos- 
session thereof  and  deny  that  ths  sPpellanvS  h-id  any  title   or   interest 
therein  and  refuse  to  account   to  thon  f o  r  any  .".hore  of  the  rents  and  prof- 
its of  the  property.     To  the  complaint   the  resi^cndeats  make   two  conten- 


soo. 

tiojos:     First,  that  tie  interests  of  the  eppellants  were  cut  off  ty  the 
foreclosure  proceedings-,  and,   secoad,  that  any  right  to  reccver,   conced- 
ing that   their   interests  did  survive  tl:e  foreclosure,   v.as  barred  "by  the 
seven  year  statute  of   limi  tat  ions .     The   trjalcourt  held  vdth  the  respond- 
ents on  the   last  grouad  stated,   and  entered  judgment   to  the   effect  that 
the  appellants  take  nothing  ty  their  action.     This   appeal  is  from  that 
judgment. 

^'/liile  there  is  a  controversy  "between  couDsel  as  to  the  respective 
relations   of  the  parties  to   tlie  property,   and   their  rights  growing  out 
of   the  foreclosure  sale,  ve  do  not  think  the  questions   suggested  merit 
extended  discussion.     Sicce  the  property  was  the  commtinity  property  of 
William  A.   Freeimn  and  his  wife  Belle  Freeman,   it  passed,   on  the  deatlj 
of  Mr.  Freeman,   one-half  to  Mrs,   Freeman  as  the  survivor   of  the  ccEonun- 
ity,  and   one -half  share  and   share  alite   to    the  appellants,   as  the  sole 
legitimate  issxis   of  the  bcdy  of  Mr.  Freeman,  ard.  that  these  several  per- 
sons, as  long  as  they  retained  title  to  the  property,  held   it  as  tenants 
in  common.     It  must  follo^j,  also,    that  the  appellants  were  icetessary  par- 
ties to  the  foreclosure  proceedings,    if  thetr  interests  in  the  property 
T.ere  to  be  cut  off,   and  as  they  were  not  ra?-de  parties  thereto  their   inter- 
ests were  not  affected  by  it;   tJiat  the   only  effect   of   that  proceeding  was 
to  pass  the  title  of   the   one-half   interest  of  Mrs.  Freeman  to  the  purchas- 
er at  the  foreclosure  sale,  ard  to  make  sue h  purchaser  a  tenant    in  common 
in  the  property  v.lth  the  appellants. 

V/e  cannot  think,  hovrever,   that  when  the  purchaser  entered  into  pos- 
session of  the  property  after  his  purchase  at  the  sale,   that  hfe  possession 
conferred  seizure  upon  his  ootenants.     It  is  clear  that  he  uoder stood  that 
he  vvas  purchasing  the  entire  property,  and  that  his  entiy  into  possession 
viSLS  for  his  sole  axd  exclusive  benefit  as  ovner  of  the  property,   ssnd  that 
he  never  thereafter  recognized  the  appellants  or  any  one  in  privi^  with 
them  as  haviiag  any  interest   in  the  property.     Such  a  possession,   under 
the  rule  of  Cck  v.   ToctPkinson,   39  \7ash.   70,   80  Pae.    1005,  was  sufficiently 
adverse,  even  against  a  tenant  in  coraoion,   to  start  running  the  statute  of 
limitations.     That  case  is  authority/  also  for  the  holding  that  the  statute 
has  run  against  the  appellants  who  had  reached  the  age  of  majority  at  the 
tin©  the  purchaser  entered  into  possession  of  the  property  under  the  fore- 
closure sale,  as  sirce  that  time  his  possession  bad  ;'be8fi  at? tnel.aopBa  and 
aDieriotiE„:Jindet'.cdlor   of  title  made,  in  good  faith,   and  during  such  tins 
he  has  paid  all  taxes  legally  assessed  on  such  lands.     That  case  vras  found- 
ed, ha;ever,   upon  the   third  section  of  the  act  of  1693   {Lav/s  1893,  p.  20), 
and  by  the  fitth  section  of  the   same  act  it  is  e:3>re55ly  provided  that  the 
third  section  shall  not  "extend  to  lands  or  tenements  when  there  shall  be 
an  adverse  title  to  such  lands   or   tenements,  and  the  holder  of  such  ad- 
verse title  is  an  infant   or  person  under  legal  age,  or  insane." 

If,  therefore,   the  appellants  \ho  were  miners  at  the   time  the  re- 
spondents entered  into  possession  of  the  premises  are  barred  of  their 
right  of  recovery,   it   is   in  virtue  of  the  first  section  of  the  act  cited, 
vhida  is  made  applicable  to  minors  as  well  as  adult  claimaats  of  property. 
Thct  section  reads  as  follows: 

•"Hiat  all  actions  brov^ght  for  the  recovery  of  any  lands,    tenements 
or  hereditaments  of  which  any  person  may  be  possessed  by  actual,    open  and 


501. 

notorious  possession  foi*  ccven  ouccessive  years,  haviiig  a  connected  title 
in  lav/  or  equity  deducitle  of  record  frcra  this    state  or  the   United  States, 
or  from  any  public   officer,    or  other  persai  authorized  iy  the   laws  of 
this  state   to  sell  such  lend  foi    the  nonpayment  of  ta:ces,   or  from  any 
sheriff,  raarshal  or   other  person  authorized  to  sell  such  land  on  execu- 
tion or  under  any  order,   jud;5-nent   or  decree  of  any  court  of  record,   shall 
te  brotght  \.ithin  seven  years  next  after  possecsion  boiug  taloan  as  afore- 
said,   out  -hen  the  possessor  e:i3.11  acquire  title   after  talcing  such  pos- 
session,  the   linitation  shall  "begin  to  run  from  the   time   of  acquiring 
title.'     Laws  1895,  p.   20,  Sec.    1. 

She  question  must  turn,   it  \/ill  be  observed,   on  the  meaning;  that  is 
given  to  the  word  "authorized."     If  that  \;ord  is  to  have  the  meaning  of 
'.Vla^vfully  authorized,"   that   is  to  say,    if  the  authorization  must  liave  "be- 
hind  it  a  judgment   or  decree  of  a  ccurt  of  record  valid  against  both  col- 
lateral and  direct  assaults,   then  clearly  this  sale   is  not  auttiorized 
within  the  meanirg  of  that  word  as   it  is  vised  "by  the  statute.     But,    on 
the   other  hand,    if  its  ^^aniug  is   tiaat  a  sale   is   authorized  v.hen  it  is 
directed  by  a  juf-gment   or  decree  of  a  court  of  record  fair  upon  its  face, 
then  it   is   just  as  cleea-  tliat  the   sale  "as  authorized.      It  seems  to  us 
that  the  latter  is  the  correct  meaning.      In  legal  parlance,   the  order  of 
the  court  viiich  apparently  finally  detei-mines  the  rights  of  the  parties 
in  the  action  or  suit    is   rpolten  of  as  the  judgment   or  decree.     In  fact,    so 
general  arc  these  terns    iii  the  comi^ion  understanding  that  the  ijord  valid, 
voidable,    or  void  is  usually  prefi::ed  to  them  in  order  to  marlc  their  rel- 
ative value.     The   legislature  v/e  thinl:,   siEice  it  used  only  the   general 
terms  vithout  a  prefix,  must  have  meant  the  first  oDder  entered  by  the 
court  -.hich  purported  to  determine  fiixlly  the  riglats   of  the  parties  in 
the  action;   regardless  of  the  question  of  the  validity  of   that  order.     To 
give  it  any  other  meaning  \;ould  be  to  destroy  the  purposes  of  the  act. 
If  tho  authorization  to  bs  valid  must  have  behind   it  a  judgriient  or  decree 
invulnerable   to   every  foiTfi  of  assault,    there  would  be  very  little  need  of 
tl^  statute.      It  could  tlien  only  apply  to   the  proceedings  of  the    sheriff 
had  in  the  execution  of  the  -jrit  or   order  of  sale,   cjid  it  vDuld  be  hard  to 
conceive  of  a  case  vhere  the  sheriff  has  made  a  sale  and  so  defectively 
csfecuted  the  v/ri  t  or   order  as  to  confer  no  rights  at  all  upon  the  purchaser 
at  tjie  sale.     The  real  evil  lay  in  the  proceedings  bade  of  the  judgment  or 
docreo,   md   it  was  tliis  the   statute  intended  to  correct. 

It  is  argued  tliat  this   section  v-a-s  not   intended  to  apply  to  the  es- 
tates of  minors,  but  ^;e  thinl:  the  statute  clear  upon  tiiis  question.     The 
statute  as  originally  enacted  defined  tliree  distinct  cases  viiere  color  of 
title.,  accompanied  vjxth  certain  corditions,  xjould  operate  as  a  bar,  after 
a  fr:ed  time,  to  a  recovery  b^^  the   legal   ovaier.       Ilinors  end   insane  per- 
sons v/ere  exeinpted  from  the  operation  of  t'./o  of   them.     ::cnif estly,   there- 
foi-e,    the  third  \.as  intended  to  apply  to  minors  as  './ell  as  to  adults.     The 
pa;er  of  the   legislature  to  enact  such  a  statute  is   indisputable.     The 
rule  cjnnot  be  bettor  stated  than  in  the   language  of  llr.   Justice  Miller  in 
Vaixe  V.  Vcoice,    106  U.   S.    514,    2  Sup.  Ct.  854,    27  L.  TA.   608,  viiere  he 
uses  the  following  language: 

■'It  is  urged  that  because   tlie  plaintiff  in  error  \/as  a  minor  vhen 
this   la-,; -./ent   into  oporation,   it  cannot  affect  her  rights.     But  the  con- 
stitution of  the  United  Ctates,    to  '^iiich  appeal  is  nade   in  this  case,   gives 


302. 


to  minorr   ao  special  ri,3;litc  iDeyond  othors,   anc.   it  was  ",;ithin  the    le;:;:iEla- 
tirc  comj.Jotenc-'  of   the  state  of  Louifciaua  to  make  exceptions   in  their  fa- 
vor or  not.     Tli3  exorpption'i  from  the   opbration  of  statutes  of   limitation 
usually  accorded  to   infants  aiif.  ivarriod  vv-oraon  do  not  rest  upon  any  gener- 
al doctrine  of  the  law  that  they  cannot  "be   suh.jected  to  their  action,  but 
in  every  instance  upon  express  lan3ua^-e  in  those  statutes  giving  then 
tiite  after  majority,    or  after  cessation  of  coverture^    to  assert   tiaeir 
riglits." 


Kie   judgment  appealed  from  is  affirmed.  \— &- 

Kadley.    C.   J.,  Mount     and  Hoot ,   JJ.,  concur. 


•^ 


C  c:■^'>'^7^^^  , 


r^*^^"-^^. 


—f 


-*ia-Tj^-^^     --'*^^^^ 


'^.      ^r> 


-^r- 


303. 


V7ILLIA1IA.  MABIB,   Appellant  v.   LSItJEL  C. 
V1-!I?TAICEIR  et  al.,  ?.e&pondcaits. 

(10  V/ash.   656     1895.) 

Appeal  from  Superior  Court,   TJiurs ton  County. 

The   opinion  of  the  court  vvas  clGlivered  ty 

Scott,  J.  — In  DecenTDer,    1064,.  ;jadrew  E.    Ilabie  and  Erneline  Z.  Hunt- 
ington were  married  in  Washington  Territory  and  lived  together  therein 
as  husband  and  vafe  until  AUGupt^Sl,    1672,_\lien  she  died  intestate  ard  no 

"administration  was  had.     ?hey  vrere  the  parents  of  the  plaintiff,    aiad  there 
was  one   other  cliild,   the   issue  of  said  marriage,   also  living.     On  the  10th 
day  of  August,   1871,    one   Tilley  and  lois  \d.fe,   beii^g  the   ov/aers,   conveyed 
the  premises  described  in  the  coraplaiat.,  eonsistiug  of  1,862.60-100  acres 
Of  "land   in  Tliurston  county,   to  /jadrew  E.  Lfebie,  v.ho  held  the  same  \7ith 
his  vafe  until  her  death-      On  October  27,   1874,   after  the  death  of  his 
vdfe,  Andrew  Mabie  executed  a  c.ecd  purporting  to  convey  all  of  said  land 
to  one  :iaai¥tt71and  the  defendants  claim  by  mesne  conveyances   through  him. 
Tlis  plaintiff  is  t./entj^-f ive  years  old,   and   instituted  tlais  action  in  Hay, 
18^2,    claiming  as  an  heir  of  his  mother^     The  fom  of  the  action  is   eject- 
ment,   the  plaintiff  demanding  to  be  let  into  possession  -.nth  defendants? 

""ar'ar  tenant   in  common,   and  for  the  rents  and  profits,   and  damages   for  cut- 
ting~3nd  removing  timber.     After  the  plaintiff  had  introduced  evidence  in 
support  of  his  case  rnd  rested,   the   court  granted  a  motion  by  the  defend- 
ants for  a  non-suit,   on  the  ground  that  the  deed  of  Andrew  Ilabie  conveyed 
the  entire  tract  and  cut  off  \hatever  interest  the  plaintiff  inherited 
therein,   if  any,   from  his  roDther,  and  this  appeal  is  prosecuted  therefrom. 

The  deed  from  Tilley  and  v;ife  to  .Indrew  Ilabie  vas  e::ecuted  viiile   the 
statutes  of  1669,  relating  to  common  property,   were  in  force,,  and  the  land 
became  the  common  or  coirmunit'-  property  of  Mabie  and  vafe  thereunder. 
Section  9  of  this  act    (Laws  1869,   p.   320,  Abb.  Real  Prop.  £tat.,  p.  472), 
empowBred  the  husband  to  coiwey  the  entire  title  to   such  land  by  his  sep* 
arate  deed,  but  subsequently  the   legislature  passed  another  act   (Laws 
1871,  p.   70,  Abb>  Real  Prop.  Ptat.,  p.  476),    which  -..as  in  force  at  the 
time  Ilrs.   llabie  died  in  1872,   and  Sec.   12  of  tiiis  act  reads  as  follows: 

"The  husband  shall  l:iav6  the  management   of  all  the  coornon  property, 
but  shall  liave  no  ri;^t  to  sell  or  encumber  real  estate  except  he  shall 
be  joined  in  the  sale   or  encumbrance  by  the  v/ife;  but  ho  may  sell  or  en- 
cumber any  personal  common  property  vathout  being  joined  by  the  ;/ife." 

One  of  the  contentious  of  the  respondents   is   that,  viiatever  the  nat- 
ure of  the  mfe's  interest  in  the   land  v.as ,   the  ri^t   of  liable  to  convey 
the  entire  title  could  not  be  talcen  av;ay  by  legislation  subsequent  to  the 
time   it  was  acquired  by  him.     But  leaving  out   of  consideration  all  ques- 
tion as  to  vhether  lie  could  only  e::srcice  such  ri(Jit  \saiile  his  wife  was 
living,   and  could  not  convey  the  entire  title  ucder  the  former  law  after 
her  death  and  cut  off  her  heirs,   v/e  thinV:  the  subsequent  set  took  a^-jay 
his  power  to  do  so.      It  vas  immaterial  vhether   tiie  record  title  to  the 


304.  '   , 

conununity  lauds   stood  in  the  naiie    of   tiie  husband  or   of   the  wife,   or  of 
■both  of  them,   when  considered  with  reference  to  the  po-.ver  of  the    legis- 
lature to  authori2e  either  or  hoth  of  thsm  to  coiwey.     The  legislature 
could  as  T/ell  have  provided  that  the  vrlfe  could  convey  as  the  hushand, 
and   if  it  Imd  po\/er  to  say  that  either  could  dispose  of  the  coinmunity  in- 
terest of   tlB    other,    it  could  say  that  neither  could  do  so.     Changing 
the  manner  of  the  conveyance  did  not  alter  the  statue  of  ovmorship.      It 
could  not  make   the  interest  of  either  spouse  in  community  lands  greater 
or   less.     Furthermore,   prior  to   the  conveyance  to  Hallett,    the  community 
in  question  had  "been  dissolved  "by  the  death  of  the  v/ife,   and  at  the   time 
of  her  death  the   law  of  1671,   relating  to    the  descent   of  conmunity  prop- 
erty,   vas   in  force.     Section  22,  p.  73    (Abb.  Real  Prop.  Stat.,,  p.  478), 
provided  that: 

"The  common  property  being  partnership  property,   the  vdfe's  share 
shall  be  one -half  thereof  and  sliall  be  hers  and.  her  heirs  forever;   and 
her  share  of  the  common  property  may  be   increased  so  as  to  be  more  than 
one-half,  by  the  wife's  coinplianco  with  the  provisions  of   section  five  of 
this  act." 

Appellant  claims  that  upon  the  death  of  Ilrs.  liable  an  interest  in 
said  lands  vested  in  him,  and   that  he  became  a  tenant  in  conmou  v/ith  his 
father  and   sister.     In  addition  to  the  claim  that  Mabie  could  and  did 
convey  the  entire  title  to  Kallett,    in  consequence  of  havirg  that  right 
vhen  the  land  was  acquired,  which  we  have  above  discussed  and  i^-ich  v/ill 
be  further  considered  on  a  different  ground,   it  is  contended  by  the  re- 
spondents that  liable  and  vafe  held  the   land   in  question  as  joint  tenants 
\/ith  the  right  of  survivorship,   and,  consequently,   upon  her  death,    that 
he  became   the  sole   c/mex .     The  act  of  1869  did  not  fix  the  stattis  of   such 
property,    other  than  to  declare   it  to  be  ccmmon  property,  and  made  no 
provision  for  its  descent.     Eor  vss   there,  at  that  time,   nor  for  some 
time  thereafter,  any  expi-ess  legislative  recognition  of  estates  in  joint 
tenancy.     But   the  claim  is  fovimed  upon  the  common  lav;  \.hich  vas   in  force 
to  a  greater  or  less  extent  in  the   territory,   and  upicn  the  follovdng 
statute  approved  in  December,    1885;   viz.: 

"Section  1.     That   if  partition  be  not  made  between  joint  tenants, 
the  parts  of   those  who  die  first  shall  not  accrue  to  the   survivors,   bat 
descend,   or  pass  by  devise,  and  shall  be  subject  to  debts  and  other  legal 
charges,    or  transmissable  to  e::ecutors   or  administrators,  and  be  consid- 
ered,   to   every  intent  and  purpose,    in  the  same  viev;  as  if  such  deceased 
joint-tenants  had  been  tenants   in  common;  provided,    that  commtmity  prop- 
erty shall  not  be  affected  by  this  act. 

Sec.  2.     That  all  acts  ani  parts   of,  acts  in  conflict  with  tliis  act 
be  ani  are  hereby  repealed."     laws  1885-5,  p.   165. 

'\7e  cannot  concede  the  force  of  tliis   indirect  regognition  of  joint 
tenancy  as  g^aplied  to  community  lands  which  the  recpoudentc  contend   it 
should  1-jave.     The  reference  thereto  in  this   staluce   is  not    the   first   in- 
stance of  the   employment   of  loose  or  ina'T'Plicahle  e:rpressions  '„i':h  regard 
to  fornEr   or  e::iEting  laws  in  our   legislation;  ncr  do  we  thinl;  such  de- 
fective statutes  are  peculiar  to  this   state  and    territory,  as  it   is  some- 
thing liable  to  occur  in  any  legislation,   owing  to  the  fact   that  lav/-mafc- 


305. 

ing  "bodies  usually  do  not  and  cannot  well  have  a  fiill  appreciation  slid 
underctandiitig;  of  the  various  lav.-s  iu  force  or  enacted  by  them,   in  all  ':':•) 
their  ■bearings . 

It  is   evident  that  a  holdin;^  that   the  ri^ht  of  survivorchip  did  ob- 
tain witli  reference  to  coraaunity  lands  '.ould  overturn  ard  nullify  the  e:c- 
presE  declarations  of  the  statute  ahove  set  forth,  relating   to  the  status, 
ovmership  and  descent  thereof,  passed  in  1871    (Sec.  22,   supra). 

The  act  of  1869  aid  this   act  declared-  that  all  property  so  acquired 
should  be  conraon  proijerty.     The  section  referred  to  declared  that    the 
conxaon  property  \7as  partaerdiijiP  property.     Section  25  provided   that,   "The 
rights  of  all  mai-ried  persons  nov.'  living  in  this   territory,  and  of  all  v/loo 
shall  hereafter  live  in  this   territory,   shall  he  governed  by  this  act." 
./e  have  here  the  clearly  manifested  intent  of  the  legislature  not   only  to 
define  v/hat   tlis  conmunity  estate  was,  najnely,  a  partnersMp,  but  providing 
for  descent  tliereof  and  inalcing   it  appliCcxble  to  persons  then  living  in  tiie 
territory  as  Avell  cz  those   thereafter  to   come;   to  coiiimunity  estates  then 
e::isting"aE  •./ell  as  those  to  be  accuired.     The  statute  of  1871  did  not 
undert£.I:e  to  divest  any  riglit  -.hich  had  become  vested.     Ilabie  receiving 
this  conveyance  under  the  act  of  1869   thereby  became  the   o\iLer  of  an  un- 
divided one-lialf  interest  in  the  land,  and  his  vdfe  thereby  became  the 
o-v7ner  of  the   Oder  half.     Her  right  v/as  as  much  a  vested  right  as  his. 
Under  the  v/eight  of  authority  the  legislature  had  pov;er  to  change  the  law 
Of  descent  and  could  taJce  a\/ay  tbs  right   of  survivorship  as  to  estates   in 
joint  tenancy,  and  raalce  the  zssne  applicable  to   lands  already  accuired. 
Cooloy,   Const.  L  im.    {5th  ed.),  440,  -'".41.     Freeman,  Co-tenajicy  and  Part., 
Sec.  Ee,   aiid  cases  cited  by  each;   also  liiller  v.  Dennett,   6  H,  H.   109. 

Sec.   22  aforesaid  is  substantially  a  statute  of  descent.     It  has  the 
tjeclmical  and, apt  \7ords   of  such  a  statute:     "Kers  and  her  heirs  forever," 
which  ind:|.Gate  the  legislative  intent.     There  was  also  a  general   statute 
of  descent  in  force  -ivhich  could  more  logically  be  applied  to  coratiunity 
estates  than  could  the  doctrine  of  joint  tenancy.     Lavs  1862,  p.  261,  .Ibb. 
Real  Prop.  Etat.,   575»'378. 

£ubseouently  another  set  \/as  passed  to  regulate   the  descent  of  real 
property.    "Laws  1875,  p..  55.     Section  2  provided:      "Upon  the  death  of  hus- 
band and  wife,    the  whole  of  the  corimunitj'  property,    subject  to  the  com- 
munity debts,  sloall  go  to   the  survivor."     Tliis   statute  continued  in  force 
until  ITovej-jber,   1879,  v.hen  an  i.ct  was  passed   (Laws  1879,  p.   77),  Lee.  13 
of  vhich    .'as  as  follows: 

"In  the  case  no   testament.  :y  disposition  sh^l  have  been  made  by  the 
deceased  husbanc.  or  -/ife  of  his  or  her  half  of  the  corai:aunity  property,   it 
Eliall  descent  ecually  to   the  legitimate  issue  of  his,  her  or  their  bodies. 
If   thea-3  be  no  issue  of  said  deceased  living,  or  none  of  their  represent- 
atives living,   then    fee  said  coantmity  property  E:r.ll  all  pass   to  the   sra- 
vivor  subject  to  t  :ie  cor.munity  debts,  and  to   the   e::clusion  of  collateial 
heirs,    t:;.e  fcaily  allowance  fend  the  charges  and   e:.rpenEec  of  adiiinistration. 

In  neither  of  these  acts  v/ere  co/iiuunity  lands  referred  to  as  being 
held  in  joint  tenancy,  and  tlie  only  refei'ence  of   the  land  thereto  is  con- 


Jy.  :^i  ,-^  ••''•' 


Xl^f 


306. 

taiaecL  in  the  act  ai'oreSc.ic\,  pacsocl  iu  1865,   Eubsei..uexit   to    3II  of  them. 

A  partnership  is  not  a,  joint   ten^.ucy.     ia-soas  on  i-artne:.'Ship,   at 
page  2  (3d  ec'..),   says: 

"QJhuc  partnership  has  "been  coii^sred  to   tenancy  in  couvaon,   ane  also 
to  joint  tenancy.:  and  hi.s  "been  said  to  "os  one  or  tho  other  of   these,  mod- 
ified in  cert..ia  v/^ys.     Thiz  v/ac  the  view  tal:en  in  ell  the  e?rly  "bootz. 
But  tliis   is  no- more  true   than  tl:iat  tenancy  in  co/unon  or   joint  tenancy  is 
a  aodified  partnership.     Txie  three   thinr:,s  are  eEsenti.llj''  distinct.     Ihey 
all  have  the  element  of  joint  orjnsrship  of  property,  but  in  all  other  re- 
spects are  different  and  ii^dependent;    enC.  the   la.'  of   each  must  be  eou^t 
for  in  itself.     *     *     *      -jid  as  to  joint  tenancy,  not  only  aay  all  of  the 
four  unities— title,   inte-ett,    time  aud  posoessionr-ever:/'  one  of  vhich  is 
essential   to   joint  tenancy,  be  absent  fron.  pai  tnei'Slaip,   tut,   besides   this 
tec'.inical  difference,   the   subst^jitial  characteristic  of  the  joint  tenancy, 
which  is    tiie  right  of  survivoriiip,   is  wholly  -.-antins  ia  fact  in  partner- 
slup,   for  it  e::icts  there  only  in  forjia  and  as  a  mere  trust  foi-  the  purpose 
of  settleaeut.'^ 

"The  fundamental  idea  of  the  coiiiaunity  system  is    that  marriage  ma'^es 
the  man  and  v/oraan  partueis,  and   Uiafe  therefore  all  pi-operty  acquired  after 
marriage  is  coanunity  property."     Ste-.:;rt,  Husbani  and  V.'ife,  See.  317. 

See,  also:     De  Slane  ▼.  Lynch,   23  Te::.   25;   In  re  Buchanan's  3st.-,te, 
8  Cal  507;  WilMnson  v.  V/illcinsovi,   20  'fe:;.   237;   Cart\wiGht  V.  Kollis,   5 
T©::.   152. 

"The  central  idea  of  the  corT.iunity  system  is  that  narriage  ci-ec.tes  a 
partnership  in  property  betv;een  husbard.  and  v;if  e  and  that'  all  property  re- 
sulting from  the  labor  of  both  or  either  of  them,  aui  all  property  vesting 
in  ihem  or  either  of  them,  e.:cept  by  gift,  device,  bequest  or  descent,  in- 
-ures  to  tho  benefit  of  both  of  them;  and  though  co.iMunity  property  has  not 
all  the  incidents  of  partnership  property,  it  has  many  of  them,  and  is  com- 
monly spoken  of  as  partnership  property."     3  .'-sa.cc  Eng.  Enc.  Lav;,  p.   350. 

Tlie  act  of  1871,   in  addition  to  declaring  such  property  partnership 
property,  provided  for  an  increase  of  the  -.ife's  interest   to   more  than  one- 
half.     Tliis  v/as   incomx^atible  ivith  the  doctrine  that  such  estates  '..■ere  held. 
in  joint   tensncy.     But  even  ii   they   i-ere,  by- providing  for   Xhe  descent  of 
her  interest,  his  right  of  c^iccescion  as  the  survivor  •'.-•as  cut  off.     V/e 
know  of   no  instance,   judicial  or  otherwise,   v/here  such  doctrine  of  joint 
tenancy  has  been  recognized  or  ^plied   in  the  history  of  the   state  a:xL  ter- 
ritory, and.  none  hrs  been  called  to  our  attention,     ".'e  are  of    fr. e  opinion 
that   the  unive'.c^l  belief  aod  course  of    ^ctin^  iis  s  been   contrcj:^'  thereto, 
and  that  the  r  ight   of   tal.ihg  by  survivor sMp  has  at  no  tine  e::isted.  as  to 
community  lands  here,   e:xcept  under  the  statute  of  1875,  providing  for  such 
descent. 

¥ 

A  good  many  cases  hcve  been  cited  by  the  respondents  holding  that'"'    • 
a  pui'chaser  of  the  legal  title  to   lands  -..•ithont  notice  of  any  equities  •  '     ^ 
therein,  v;ill  tcte  the   entire  title,   2nd  we  prosiime  this    -.ill  not  be'dis- 
puted,   as  a  general  proposition.     But  some  of  them  from  California  and^ 
lezLas  go  further,   and  hold  in  effect  that   the  life's  interest  in  community 


507. 

IcnC-C  is  an  equitrole  iatersst  o■i'-l:^,   a:ni  tiat  her  lieirc  •'ould  be  cut  off 
Tjy  sv.ch  a  coaveyance.     But  i;.i  both  o£   ti^ete  ctatss  the  disposition  of  cora- 
munity  laac's  rected  in  tlio  hus'b^lllc.  cud  ho  could  convsy   tlie   scrrs   to  satisfy 
the  co;:t:iunity  do'otE  ai'tei-  her  death.     In  cone  instjiices  the   rocoid  ti-tle 
is  cpoken  of  as  the  le^cl  title,  but   tJais   can  be  true  only  in  a  qualified 
sense.     A  deed  of   Isiids  under   the  coiu.itions   specified  in  the  statute  vest- 
ed the  ownership  in  the  coixiunitj^,  no  raattei'  which  spouss  v/as  nsmed  as 
Srantee   in  the  deed,  and  tbs  title  of  one   spouse   therin  v/as  a  le&'al  title 
as  •,.'ell  as  that  of    Ci3   other.     It  ms.y  be  said   that  the    title  or   inte:.3st 
of  either  spouse   therein  separately  \;cs  only  an  equitable  one.     But  hO;.'  is 
this  material  in  tlie   face  of  Gie   statute  in  force  Then  the  deed  ■b3r  ."jadrew 
MabiG  \/as  eriecuted,   which  declared,  voithout  regard  to  the  na.t-Lore  of    the 
o\flaerEhip  of  eithiCr  spouse,  that  the  husocnd   should  have  no  ri^ht   to   cell 
or  encujnber  cor.v.iunity  real  estate  e::cept  he  be  joined  in  the  sale  or  en- 
cunibranco  "by  the  wife? 

It  rai:,ht  •..■ell  be  that  the  le^al  title,   \hsnc  onsidered    Ith  referenco 
to  innocent  purchssers,     •or. Id  be  regarded  as  resting  in   tlie  one  "'ho  I-lcsI 
the  recoi'-"   or  v/ritten  evic  ence  oi"  title,  a:id  that   a  co'iveysiice  fror.  such 
spouse  to  rM  innocent  purchaser  ^-o  a  Id  transfer  the  entire  estate  of  the 
coianunity,   and  tie  senae  iv.Ib  wA-Jxt  be  r3C05,'nized  under   €i6  circumstances 
of  this   case,  perhaps,  after  the  death  of  the  -/tfe,   if   it  vould  obtain  be- 
fore;  but  it   canr.ot  obtai;-  at  all    Ithout  directly  nulliiyins  the  statute 
•..Mch  said  he  should  have  no   ■•rix.ht"   to  sell,    and.   •'rie;ht''  in  the  sense 
used  there  /neant  po\.-er.     Dy  e^iecutin^  such  a  tasC.   the  husbcrx.   subjected 
hiiTiself  to  no  peurlty,  ari.  tlieri;  ■..■'as  no  vs.y  of  enforcing  the  st^.tute,   if 
tlie  deed    ;as   to  be  reooani-ed  as  valid.     Tliic   saae  section  (  12,   supra), 
:?rovid3d  that  he  ,ui:;ht  sell  the  cori-iuiiity  peisor.al  propaty  -.Ithout  lier 
participation.     A  ci.-dlar  le  :  is  in  force  at  this   tirae,  end  it  has  al^'ays 
been  the  settled  belief  tliat  the  deed  of  both  husband  and^;ife  is  necessai-y 
to  pass   t"'J3   title  to  coaxinity  linds  under  these  stctutes.     In  fact,   it 
could  not  have  '•oqq':!  otiier  Ise.     Eiere  is  no  decision  of  the   LX^.prenie  court 
of  the  st:t8  or    territory  to  the  cantrary,   ai:-'.  there  has  bee:-  none   oy  any 
inferior  court   that  -'e  are  a-.-T.re  of,  unless  tlie  decisio:-'.  of  Cie  c.:xe  befoi^e 
us  ■.••as  u^^o'a  th-at  ground.     It  is    true,   in  Sadler  v.  ITiesz,   5  "'ash.  182   (CJl 
iao.  600),   ...e  in  effect  held  t!:2  wife  estopped  under  tine   circ instances  of 
that.Ccse  froa  aS£e-..tinG'  a  clc-i.i  to  corauinity  lands  deeded  by  the  husb^ia:-. 
but  that  in  no  "./ise  co.it  avenes  the  doctriris  above  stilted.     In  coniaection 
\7e  c.Il  atte-..tion  to:     I.'olyoVx  v.   J-;cicson,   o  '  csh.  T.  2D5    (0  lac.  t'A]\  u 
Hill  V.  yov.ni,  7  -"ash.  I.-.   (I.i  :.,c.  144),   and  Id.vas  v.  llach,  6  '  a^..  528 
{.CjGiac.  10?:-),  as  so;.ie  of  the  c"s3t  decide:,  in  tiis   £;t;te  .nd  territoiy  ... 
l)earin:_;  upon  the  tusstiour.  befois  us. 

"."'e  cabinet  ovortmn  the  st  tp.tes,  nor  the   settled  l,-.'.-  of  the   state,   to 
uact  the  liaitlEhips  of  &  particular  case,  much  as  \iq    -oui:.   lihe  to  avert 
thorn.     If  Andie-.' Kabie  could  uob  conv.e:'  this   lanC.  duiin^  the  life  ti.ne  of 
his  -lie,  Tie   could  conve-r  not",.i.-.j  -lO'.e  tii:n  his  inte-33t  t:-£:.ein  aftei   her^ 
doath.     IVon  lie-.,    de: -th  iTsr  intsi  est   iu  these  laix'-s  vetted  in  her  heirs,   and. 
tie  pl>iiitiff  -as  Oiis  oi'  the.a.     ".hat   tlie  e  .tent    of  the    inte-est   --as    -^-i^-; 
the  plaiutifx   succee  ed   to,  o;     -hether  the  husbtnd  tool:  a  share  ox  his  \afe': 
estate  also  ao  o^   of  ".lev  heiis,  -..-Q  si'c  not  c  .llee.  upon  llO^/  to  detei  due, 
as  t:ie  ri:s6ti.nhc^  not  beoi..  pi-;,oint3d  or  ar-ued.     Fui'tl^ermoi  e ,   as  .'oadre^ 
Ilcbie  rccoivo^'   a   varoable  consic-Qi,.  tio  i  for   tliis  coiivoyancc,     hich     -.i 
understood  b^-  the   j-rtics  to  be   for  the  -vholD  ti,.^ct,   it  :xy  be   that  the 


-.^'^-^^iSo^^^Z-at.^'r' 


308. 

plaintiff,   in  case  he  inherited  or  received  anything  from  his  fatheh's  es- 
tate, can  te  called  upon  to  accoimt   thereon.     But  these  questionn  mi-;st 
av/ait  the  future  disposition  of   the  case,   or  be  disposed  of  thereiUi 

It  is  further  contended  "by  the  respondents  that  the   judgment   of  nc?)- 
suit  vas  rightly  granted,  'because  ejectment  cannot  "be  maintained.     But  \v& 
think  the  lav/  is  v^iell  settled  that  a  tenant  in  common  can  maintain  ejet'.t- 
ment  against  ^a  co-tenant   in  possession  who  disputes  his  right.     Preerjvn, 
"Cotenancy  and  Partition  (2d  ed.).  Sec.   248,    290;   University  v.  Pieynoldf;' 
E:c'r.,   3  Vt.   542    (25  Am.  Dec.   234);    GaJ-3  v.  Kines,   17  Fla.   773;  V7olfe  v. 
Baxter,    86  Ga.   705    (ISS.  S.   18);  Hancoclc  v.  Lopez,    53  Cal.    362. 

And  that,   if  the  law  rrere  otherwise,    this  action  could  te  maintained 
under  Sec.  529  and  531,  Code  Exoc . 

Reversed  and  remanded  for  a  new  trial.  V-~o>r-~-.     \^\ 

PuQbar,   C.   J.,   and  ;in<?-ers,   J.,   concur. 

Eoyt,   J.    (dissenting) — I  dissent.     In  my  opinion  the  act  of  1871 
did  not  affect  property  theretofore  acquired.     Ihere  is  no  language  used 
in  the  act  ^^hich  to  m^;'  mind  discloses  any  such  intention  on  the  part  of 
the  legislature.     In  that  rei^ect   it   is   entirely  different  from  the   other 
statutes   in  relation  to  com^aunity  property.     A  statute  which  introdiices 
a  rule  as  to  real  property  radically- different  from  the  one  theretofore 
existing  should  not  be  construed  to  apply  to  property  acquired  before  its 
passage  unless  the   language  malres  clear  the  intention  of  the   legislature 
that  it  should  so  apply*     Before  the  passage  of  the  act  of  1871  the   ele- 
ment  of  common  property  had  been  introduced  into   our  statute  law  but  not 
to  such  an  e::tent  as  to  greatly  affect   the  holding  of  property  belonging 
to  the  husband  and  T,vife  by  either  of  them.     But  this  act  sou^t  to  intro- 
duce an  entirely  new  cordition  of  thirgs,  and  to  constitute  a  kind  of 
partnership  between  the  husband  axid  wife  in  the  holding  of  sich  property. 
Hence  under  the  rule  above  suggested  it  should  be  held  not  to  apply  to 
property  theretofore  acquired  unless  the   language  clearly  indicates  the 
intention  of  the   legislature  to  give  it  stch  retrospective  effect.        1 
fiEd  notiiing  in  the  act  in  guesticsi  to   indicate  such   intention;   on  the 
contrary  I  find  language  vhich  to  my  mind  indicates  an   intention  to   give 
it  effect  only  as  to  property  thereafter  acquired.      If  I  tvm  right  in  thus 
construing  the  act  of  1871,   the  rights  of  the  parties  to  the  property  in 
question  must  be  determined  under  the  law  of  1869.     Under  that   3a-.v  t'.-^ 
husband  alone  could  dispose   of  the   coimnon  property  during  coverture.     Such 
pov/er,   in  my  opinion,   carried  v.lth   it   the   right   to  dispose  of  such  prop- 
erty by  the  husband  after  the  death  of  the  wife.      In  other  states  sinilrjr 
statutes  have  been  held  to  confer  si-ch  authority  upon  the  husband,  and  po 
far  as   I  am  advised  the  courts  of  none   of  the  states  hx^ving  statutes  1133 
this  now  hold  to  a  contrary  doctrine. 


i 


I' 


309. 


SILlBTCai  U^RBUP.TOII,   APP3lla\t,   V.   I.L1TI1DA  B. 
VffilTE  et  al.,  Respondcato. 

(18  Wash.  511     1698). 

Appeal  from  Superior  Court,   Pierce  County. — .Hon.   J.  A.  rilliamson. 
Judge.     Affirmed. 

■   Per  Curia3D.— The  question  to  te  determined  in  this  case   ic_\Aiether  '^  -:>  qj: 
the  iiuslDand  cvcceeds  to"~all  the  property  T/hich  v.as  purchaBed  ty  himseif 
"and  v/ife  v/ith  comniuniiy  funds  in  this   state    (then  a  territory)    in  1878,^ 

orwliG  Sier '  one -half  of  said  property  descendc   to  the  heirs  of  tho  wife_» 

It  is   contended  hy  the   appellant  that  the  property  descends  to  the  hus-    -^  -^-^^ 
hand  "by  ri^ht  of  survivorship  under^  the   lav;s  of   1875  and  1875   (Laws  1873,    -?» 
p.  450;  La.vc   1875,   p.   55),   and  a  very  painstaking  and  exhaustive  brief  ^ 

has  been  filed  in  support  of  this  contention.  As  an  original  proposition 
the  brief  and  argument  of  appellant  \'ould  be  e::ceedingly  interesting,  but 
the  uniform  holding-  of  t;?..is  court  for  the  last,  fi^ftesn -years  JhaE_  been  to  t-i  W) 
ttio_contrary.  This  question  vs-s  first  decided  adversely  to  appellant's 
contention  in  Kolyol^E  v.  Jac!:son,  3  V'ash.  T.  235  (3  Pac .  841),  in  the 
year  1882.  Tine  came  question  has  been  e::preEsly  decided  by  this  court  in 
Hill  v.  Young,  7  Vv'ash.  33  (34  Pac,  144),  ard  Mabie  v.  VZhittalrer,  10  "7ash. 
656  (39  Pac.  172),  aitl  incidentally  decided  in  probably  forty  other  cases, 
so  that  the  rule  announced  by  these  cases  has  become  the  establislied  rule 
of  lav;  and  of  property  in  this  state.  Rights  have  been  established  and 
have  grov.-n  up  under  these  decisions  viiich  it  would  be  \vrong  to  nor;  disturb., 
even  if  the  court  should  conclude  that  tho  rule  as  originally  announced 
v;s.s  faulty.  In  consideration,  therefore,  of  this  long-  settled  and  well 
established  doctrine  v/e  do  not  feel  called  upon  to  enter  into  a  discussion 
of  tlae  questions   involved. 

The  jud,3Kent  will  be  affirmed.  p^  « v      •C^.^e.C     ^ 

On  Petition  For  riB-Hearing. 

Per  Curiam. — Tliis  cause   is  bo.fjyye  us   on  a  petitiQn,i:nr_a_rehBar-ang, 
appellant  aslang'  a  fu^-ther  consideration  of  the   question  oefore  urged  by 

^im  in"his"b"rief  and  on  the   oral  argument,   tliat  the  right  ox   survivorship 
granted  under  t!ie   la\.-  of  1875,    siid   tlia  rights  urged  under  the  law  of  1873  \ 

"were  vested 7 proprietary  and  contractual  right s,_  one",  thrt,    thcreforei,-. 
lator_acts  'of  tho  legislature  could  not  depriva  appellant   of  them  on  the 
grourd  tha.t  it~^Duid  impair  the  obligation  of  the  contract  by  wiich  the 
property  vas   obtained,   ard  thus  be   in  conflict  with  the  constitution  of 
Big  United  Ct?.tec.     If  any  of  these  questions  are  presented  by  the  record 
it   is   sufficient  to  say  that  the  court  vras  end   is   of  the  opinion  that  sec- 
*i^5-^'^J^---§:^>_t2^^^s_1875:_p._53j  jrsis. never _  in  force  to  the  e::tent  of  t+eVA    j 
conferring  a  vested  right   of  sui-vivorship  in  favor   of  either,  spouse-as- to  *==^  | 
c^yauliitj^roper tyT^A^^such^i  t  '.vourd  have  -been  Jf-Di(l_aP_not  b eing  embrac ed      C 
iii_ttie~t"ifle~of~the  act,  and  at  most   it  could  only  be  construed  as  a  stat- 
ute regulating  "the  "desert   of  property,   aix'i   it  v.as  within  the  pov,er  of  the 
legiSlatttJ'(rtD~change~it,~\.-hich"\,as   thereafter  done.     V,'e  were  of  the  opin- 
r6ar"alg5~ Ola tr  even  tlioUoli   it  conferred  a  right_to_ property Jby  survivor- ^i*  \^ 


Mi 


310. 

jShip,    it  coulcijie  la'.sr.  avayy    rirjl  was,   by  ;}\\y\r.pirpfmt    iRgir.la.t-Sim,,  j^ml 
"that  under  the  Ia\;s  of   1873  no  vected  rij^hts  v/ere  conferred  upon  the  hus- 
tand  as  clnimod,  but   that  the   caaic  \.'2re  virhin  tlie  pov/er   of  the  legisla- 
ture to  chcuise  thereafter,  as  vas  done.     Eights,   cuch  as  are  clai:oced' "by 
this   appellcint,   never  v.ere  recognised  or  enforced  here  either  dva-ins 
territorial  days  or  cincc,   under  either   of  said  acts;   Taut   tl:e  uniform 
holding's  have  Ijeen  to  the  contrary,  as  stated  in  the  former  opinion. 


Hae  petition  is  denied. 


-\- 


fiM."-^  ^      ---li^^^^-OCZ-ti^^^L^^C^^j 


■?i"   :■: 


311. 


EUCCH3SKM  CF  LLUL&      (170.10,909.) 

(Supreme  Court  of  Louisiana.     Jan.   18,    189^. 

44r  La.  Ann.) 
(S.  Rep.    Vol.   10,406) 

Appeal  from  civil  district  court,   parisji  of   Orleans;  Hicholas  H. 
Bigbtor,  Judge. 

Suit  "by  Mary  Ann  T-laitlow  against  the  succession  of  Joseph  Llula,   de- 
creased,  to  recover  one-half   of  his  estate,  "basing  her  claim  on  the  fact 
that  she~v/as  induced  "by  him  to  'believe   that  she  was  his  v/ife,  and  as  stich 
lived  with  him.     Judgment   for  defendant.     Plaintiff  appeals .     A^finned. 

llcjlnei^,  J.— Mary  Ann  Whitlow  bi'onght   suit  against   the  Buccessioa, 
alleging  in  her  petition  that  she   is  the   ovaer  of   one-half   of   the  property 
in  the  estate  of  the   late  Joseph  Llula,    together  vith  other  rights  and 
claims  in  said  succession.     She  alleges  as  the  Dasis  of  her  claims   to  the 
i^operty  in  said  successioti  that  vhen  a  minor,  under  the  age  of  20  years, 
she  was  induced  tiy  the  representations  of  Llula  to  contract  with  him,  and       "^i, 
tliaTt  slie  was  made  to  believe  and  consider  that  ehe  was  his  wife,  and  that         -' 
^e  lived  -vvith  him  as  stjch,   thereafter,  for  28  Shears,   and  as  his  wife,  ^ 
beariagjto  him  tuti  children,   both  of  v*icrm  died  in  infancy;   that  she  main- 
tained his  household,  controlled  his  personal  affairs,   an"&,   educating  her- 
self,—he  being  illiterate, — 'She  conducted  his  business  affairs   to  mthin 
18  months  prior  to  his  death;    tiiat  duri!:^  said   time    she  vas  knovm,   recog- 
nized,  and  respected  as  his  wife,  and  Y«as  introd.\ced  by  him  as  his  wife, 
and  Still  bears  his  name,  and   is  looked  upon  as  his  late  wife,  and  is  re- 
garded as  his  widow;   that-She-taoJc-c-are-of  and  educated  certain  children 
of  ttie  deceased,  vijo  \:er3  illegitimate;  that  the   entire  real  and  personal 
elTects  ndv/  sfahdiag  in  the  n?ime   of   said  Joseph  Llula  v.-ere  talcen  posses- 
s'ion  of  "by  hi^  daxigiiter  Louisa ,-T.lfe  of  I.laauel  Suairez-Illranda,   the  same 
being  tho   entire  property  acquired  during  the  e::istence  of  the  community 
arising  from  the  effects  ■^aSd~l)Usiness  and  narriage  bet\>'een  the   said  Joseph 
Iilula  and  hfer self .     Slie  asserts  her  rights  as  the  widow  in  community.     In 
Sadition  ^e  avers  that  she,   during  the  existence  of  the  marriage  v/ith 
llula,  bought  a  lottery  ticljet  in  the  Havana  Lottej-y  with  her  paraphernal 
funds,   vtiich  drew  a  Prise  of  $10,000,  -piiich  she  delivered  to  said  Llula, 
and  viiich  he  need  for  his   avm.  personal  advantage,  and  for  ■cdiich  she  also 
makes  dencnd..     There  were  e::ceptions  filed,  vfcich  v.-ere  overruled,  but  re- 
sulted in  an  order  for  the  petitioner  to  aoend  her  petition  so  as  to  make 
her  demands  more  e::plicit.     After  conplyinc  '.vith  the  order  of  court,  and 
perfecting  her  petition,    the  defendant  filed  another  eizception,  ^lhich  \i3.s 
also  overruled,  and,   in  our  opinion,  correctly.     The  defendant  ansv.'ered, 
pleading  a  general  denial.       The  plea  of  prescription  of  3,   5,   and  10 
years  '.as  filed  by  the  defendant.     Hiere  was  judgment  for  the  defendant, 
and  the  plaintiff  has  appealed. 

The  facts  in  ttae  case  are  that  tha  plaintifXj^s  a  married  ^Toman  vJiea 
Jlie  went  tp  live  with  Llula.     She  was  married  to  one  Dunker,   and  three 
"■vveeks  thereafter  took  ^Jp  with  Llula.     Her  husband  was  living  in  Rew  Or- 
leans at  the  time,  and  only  a  £(hort  distance  frcaa  the  house  vhere  she  lived 
vrLth  Llula.     Her  hUeband  afterwards  joined  the  Confederate  army,  and,   it 


i 


312. 

is  Tjelieved,  was  I^illed  or  died  ra  tl\Q  service  of  the   Confederate  govern- 
ment.    He  never,   aft^er  he   jojnGd  the  amy,   returned  to   the  city  of  iTev/ 
Orleans.     Llula  lived  \7ith  the  plaintiff  imtil  three  and  a  half  yoarc  be- 
fore he  died.     After  his  reparation  from  her,  he  paid  her  regularly  five 
dollars  per  week.     This   e:iiouut  \vas  paid  to  her  regularly  until  provision 
was  made  for  her  by  the  universal   legatee  under  the  v/ill.     She   lived  v/ith 
llula  as  wife,   ajid  he  provided  for  her  as  such  as  liberally  as  his  means 
vrould  permit.     She  bron'^.hl;  no  ponsy  or  property  to  the   establishment, 
and  there   is  no  proof  that  by  her   industry   she   aided  and  assisted  in  the 
acquisition  of  property.     It  makes  no  differerice,  hov;ever,   in  what  light 
he  regarded  the  relations  between  him  and  plaintiff. 

(The   law  considers  marriage  in  no  other  view  than  as  a  civil  contract. 
Article  86,  Rev,  Civil  Cede;   Cole  v.  lan.^ley,   14  La.  Ann.   770.     But   it 
is  a  contract  vdiich  must  be  solemnized  according  to   the  ru?.es  which  the 
Code  prescribes.     Like  all  other  contracts,    it  may  be  proved  by  any  spec- 
ies of  evidence  not  prohibited  by  lav;,    vhich  does  not  presuppose  a  higher 
species  of  evidence  \;ithiu  the  pov.er  of  the  party;  and  cohabito.tion,  and 
the  reputation  of  man  and-  vafe,  are  presumptive  evidence  of  a  preceding 
marricge.     Hobdy  v.  Jonef5,   2  La.  Ann.   944;  Succession  of  Kubee,   20  La.  Ann. 
97.     But  pref^amption  arising  from  facts  which  tend   to  establish  the  solem- 
nization of  the  contract  of  marriage   is  not  conclusive,  but  is  subject  to 
be  rebutted  by  testimony  negativing  the   fact  of  ma.rriage.     PhilbriclT:  v. 
Spanglor,   15  La.  Inn.  46;  Kubbell  v.   Inlcstein,   7  La.  Ann.   252.     The.pJlain- 
tif^_ani5._hax_sl_leged  husband  entered  into  an  adulterous  con.necticc,  and 
the  relation  bety/een  the  parties  was  such  that  no  marriage  could  liave  be^en 
c ontracted~bet\^-een  then  '.iliea  they  firtst  assumed  this  r ela t i  cu'^^hip  to^each 
oSier.     Hie  fact  tliat  the  husband  died  during  this   illicit  connection  cfcn- 
flo't"give  a  cli3.racter  to   it  which   it  did  not  h^ve  when  it  v.t.s  fir?3t  fomed. 
It  continued  as  it  had  begun.     Tlie  fact  that  he  treated  the  plaint ir.'f  as 
his  v.lfe,  and  ixitroduced  hor  as  such  in  the  cotsflunityj  couJd  net  destroy 
01   do  away  with  the  actual   truth  of   their  relationship.     IJor  could   it  re- 
move from  the  plair.tif  f  the  loiowledgc   ttet  she  was  a  married  v;oxan  vhen 
she  deserted  her  husband,   and  vrent  to   live  with  Llula.     ghe  was  not  in — 
good  faith,   as   she   loiov;  Giat  her  hr-.^.band  -..as  living,   £ud  that  she  could 
not  become   the  v/ife  of  Llula.      It  \.ai3  not  possible  for  her    to  be  imposed 
upon.     She  \;as  his  concubine,  and  can  acsert  hei  rights  only  in  that  cap- 
acity.    V/here  the  relationship  of  conmi'^ir'agc  is   irocidoot-.-:!,  and    i^  not 
the  motive  and  cause  of   the  parties  livi^jg  together,   the  concubine  can  re- 
cover from  th&   estate  of  tlB  deceased,    if   it  has  been  enriched  by  her  in- 
dustry.    There  is  a  quasi  contrccfc  on  tlio  part  of  the   deceased  to  make 
compensation.     Succession  of  Pereuiihot,   2*5  La.  Ann.   294;  Deiamour  v. 
Roger,   7  La.  Ann.  152. 

T-ie  relation  of  concubinage  dees  not  prevent  the  concubine  from  de- 
manding a  settlement   of  the  affo.irs  dirring   its  e::i£tence,  and  a  partici- 
pation in  profits  derived  from  capital  and   l^bor  \,hi3h  sho  contrib'Ated, 
although  the  property  is   immovable,  and  stands  in  tlie  nprns   of  the  deceased. 
The  Plaintiff  did  not  contribute   in  capital  and  labor   to    the  acquisition 
of  the  property  left  by  the  decreased.     The  adultaroi^c  ccnne'.^tioa  va.-   the 
motive  and  prime  cause  of   tlie   cc-icubonage.     She  \.'as  in  fa-.t  tivo  mistress 
of  Llula,  althougli  he  seems   to  l-3.vc  provided  liborally  for  her  ai^  ^"'^'f'^* 
and  respected  her  as  such.     After  the  death  of  IlvJ.a,   on  July  17,   1&6S, 
an  agi-eement  v.as  made  by  plaintiff  and  Louisa  Hai^ez^   the  universal  ie^.tee 


313. 


and  heir  of  Llula,  "by  v^ich  the  plaintiff  received  certain  property  of 
the  succession  for  services  rendered  the  decear>ed,  as  a  gift  and  gratuity, 
in  full  for  all  claims  against  the  succession.  She  has  "been  placed  in 
possession  of  this  property,  and  has  collected  the  rents.  Alleging  that 
the  universal  legatee  and  heir  has  failed  to  comply  vath  it,  she  rejected 
it,  and  brought  this  suit.  Iho  legatee  lias  not  "been  put  in  default,  and 
no  demand  has  "been  made  for  the  execution  of  the  deed  to  the  property. 
This  agreement  is  a  complete  estoppel  to  plaintiff's  demand.  During  the 
time  plaintiff  and  Llula  -.Bre  livicg  together,  Llula  purchased  and  gave 
to  plaintiff  a  lottery  tic  last  in  the  Havana  Lottery  v.hich  drew  a  prize  of 
010,000,  upon  which  T/»as  realized  Os.SOO.  This  ticket  Llula  collected,  and 
used  the  money.  lie  collected  the  money  in  September,  1884.  The  relation 
"between  the  parties  was  not  that  of  husban?.  and  wife,  and  prescription  v.as 
not,  therefore,  suspended.  The  prescription  pleac).ed  hy  defendant  must 
therefore  prevail.  Judgment  affirmed. 


:Ji±i^ 


„^«^  ^  ^ 


^.^<^ 


314, 


:.IUR3AY  V.  rHPJl.\Y  et  al. 
{v20959) 

(Svi:c'reMe  Coui-t  of  Kansas.  Jan.  12,1916. 
Rehear iiiS'  Denied  Feli.  13,1918.) 
(170  PaCo   395.  ) 

J^peal  froui  District  Court,  Ehermaii  County. 

Suit  for  partition  by  Geor:^e  B.  uurray  against  Charles  I/Iurray  and 
others .     Judgirent  for  plaintiff,  and  defendants  appeal.     Affirmed, 

".Vest,  J.     !5his  case  involves  a  husbcud*  s  rights  in  land  of  his  de- 
ceased v.ife  at  temp  ted   to  bo  conveyed  by  he^-    clone  during-theix- marria^-e. 
mae  c  our  t~  He  Id '  1 1  subject   to  partition  at   the  suit  of  the  surviving  hus- 
band,   and  the  defendants  appeal. 

In  1906  EaraJ-i  Hurray  ovaied  the   lend   iji  controversy  and  made  a  convey- 
ance thereof  without  joining  her  husband  with  '..horn  she  then  lived  in  Sher- 
man county.     She  died  there  intestate  dui-ing  the  same  year,   and  an  admin- 
istrator  of  her   estate  was  appointed.     In  1914  this  action  was  begtua.     It 
is  ar3uedrth"at"it   is  barred  by  the    two-year  strtute  of  limitations  if  the- 
"deed  by  the  -nife  v/as  procured  b3r_fraud,  ^aad  by  the  five-year  statute  be- 
cause within  that  period  no   application  was  made  to  the  probate  court   to 
allot"to   the  husband  his  share  of   the   land.     But   the  main  defense   is   that 
tiielwife  owned  the  land  in  her  ov/n  right;  and  as  it  was  not  the  homestead 
of  herself  or  husband  she  could  convey  it  '..Ithout  his  joining  in  the  deed. 

Section  6  of  article   15  of    the  Constitution  of  this  state  directs 
the  Legisli-.ture  to  provide  for  the  protection  of    the    rights  of  v/omen  in 
acquiring  and  possessing  ^roperty  separ.  te  and  apart  fron  the  !msb..ud. 
The  Descends  uid  Distributions  Act   [Gen.  Stat.  1215,  tec.  5831)  provides 
that  one-half  in  value  of  all  the  real  estate  in  v/hich  tlie  husband  at  any 
time  during  the   i^arriage  liad  an  interest  './liich  has  not  been  sold  on  e::- 
ecution  or  other  judicial  sale  and  is  not  necessairy  for   tiie  payment  of 
debts  and  of  \hich  the  \dfe  los-s  a-iade  no  conveyance  si'all  under  the  direct- 
ion of  the  probate  court  be   set  apart  by  the  e:;ecutors  as  her  property  in 
fee  sir.iple  upon  the  deat'i  of  the  :.UEband  if  she   survives  him.     Section 
3855  provides    ttiat   such  allotiiient  may  bo  inade  by  the   commissioners  \.'ithin 
five  yeeics  after  tlie  death  of  the  husband.     Section  5850  is  as  follONvs: 

"All  tie  provisions  hereinbefore  tns.C.e   in  i"el?tion  to  the  wido"'  of  a 
decei-'sed  husband  shall  be  applicabite  to  the  husband  of  a  deceased  v/ife. 
liJach  is  entitled  to   the  sarce   rights  or  portion  in  tlie  estate  of    the   other, 
and  lil:e  inteiests  shall  in  the  sa;ae  manner  descend  to  ti:eir  respective 
heirs.     Tlie  estates  of  do\/Gr  and  by  curtesy  are  abolished." 

It  has  been  difiicidt   to  find  a  name  for   tiie    interest   flie     if e  has  in 
her  husband's  real  estate  apart   fro.n  the  homestead.     In  Lucenbarh  v.  Busen- 
bajrlc»   55  Kan.   572,    7  Jrao.  245,    it  was  saic.   tiiat    it  is  inchoate  and  uncer- 
tain, but  possesses  the  eleiiient  of  property  to   aich  a  degree  that  she  coulc! 
maintain  an  action  during  the   life  of  hei   husbi.ni   to  i^revent  its  wrongful 


515. 

alienation.     In  Tluas©-   v.  BaMridse,  41  Ifen.  243,   21  Pac .  159,   13  .1m.  St. 
Rep.   273,   this    interest  was  said   to  be  a  continsent  one,  but  unqne<? tioti- 
ably  property.      In  Biiffiu~ton  v.    Groaveuor,   4-6  Kan.   750,   27  Pac.   137,   13 
X.  E.  A,  282,    it  was  spolren   of  not  as  au  estate,  but  as  a  mere  pnssilulity 
depending  upon  the  death  of   the  husband   or  vheiher  he  had  divested  h:;a- 
self  of  the  title  prior  to  his  death.'     In  his  brief  in  the  case  of  c'. i- 
kins  V.  De\voy,  49  Kan.  49,   30  Pac.   114,   the   late  Ilr.  Ware  suggested  p."  a 
proper  name  the  "Kansas  Marriase  ni^ht."     In  Hagle  v.  Tieperman,    74  Jvin. 
32,   85  Pac.    941,   88  Pac.    969,    9  L.  K.  A.    (IT.  S.)   674,    10  iocm.  Gas.    977, 
the   interest  vi/as  declared   (page  41)   to  bi  quite  analogous  to  that  of  an 
heir.      It  vap  said   (page  45)    that  section  38S1  at  most  creates  an  inter- 
est in  the  husband's  real  estate  vhich  attaches  not  during  his   lifetime, 
but  upon  his  do?th.     Jn  a  dissenting  opinion  Green,   J.,  discussed  the 
nature  of  this  interest,  and   insisted  that  it   is  a  present  property   inter- 
est,  not  an  estate  x^nich  ripens  into  an  estate   only  upon  the  husband's 
death.     Iho  sans   justice  in  '.vritins  the   opinion  in  McKelvey  v.  HcZelvey, 
75  Kan.   325,   89  Pac.   663,    121  An.  St.  Rep.  435,  xnrote  in  paragraph  2  of 
the   syllabus   thus : 

"The   interest  given  by  statute  to   &  wife  in  the  real  estate   of  her 
deceased  husband  is  not  an  inheritance.   *     *     *" 

In  the  opinion  (75  ISin.  at  page  329,  69  ?ac.  at  page  664   (121  Am.  Si. 
Rep.  435)) it  v.as  said: 

"TcB   interest  v>fliij.ch  the   Etatut;e  gives   to  the  wife  in  the  real  estate 
of  her  hViBband  during  his   life   is  not  easily  classified  or  defined.     Be- 
cause of  this  difficulty  it  has  been   thou^^t  by  soite   to  "be   in   its  nature 
an  inheritance,  and  cuoh  a  suggestion  may  Tje  foucd   in  some   of  tYo  opin- 
ions of  this  court.     But;  practically  the  entire  trend  of  the   decisions   of 
this  court  is  to  treat  it   as  a  prepent  e::iBting  interest — one  v^iich  the 
■\afo  may  protect  by  an  appsDjiriate  action  during  the   life  of  the  husband 
and  against  his  -.Trongful  acts — citing  authorities.     The  -..'ife's   interest 
does  not  dexJend  for   its  inception  upon  the  cLeaih  of  the  husband,   as  an 
inhoritarce  v/ould,  but  springs  into  existence  '^y  operation  of   lav/  tipon  a 
concurrence  of  seisin  aod   tiie  marriage  relation." 

Speaking  of  the  provisions   of  section  3851,   touching  the   setting 
apart  by  tiie  probate  court,   this    language  vrais  used: 

"ijxd  the   only  control  e::ercised  by  the  probate  court  or  the  e::ecutof 
or  the  administrator  over  the  wife's  interest  in  the  real  estate  ovra.ed  by 
her  husband  at  ths  time   of  his  death  is  to  ascertain  its  value  and  set   it 
apart  to  the  wido\/ — not  as  an  heir  of  her  deceased  husband,  but  as  her 
separate  and  absolute  property  in  fee   simple.     And  since  this   intererjt  does 
not  cor^  to  lier  by  inheritance  it   is  not  a  bar  to  her  recovery  that  her 
husband  parted  ^nth  his  title   in  svch  a  fraudulent  manner  that  neither  he 
nor  his  heirs  can  recover   it." 

But    it  is   argued  by  tl-^e  counsel  for  ths  defendants  with  much  plausi- 
bility and  consistency  that  because  goct^.on  6160  provides  that  the   prop- 
erty vhich  a  v/oman  ov.ns  at  the  time  of  her  marriage   or  which  shall  come 
to  her  by  descent,  devise,    or  bequest  or  the  gift  of  any  person  cx.copt  her 
husband  "shall  remain  lier  sole  anl   separate  property,  not.vithstanding  her 


-i^^-t-cy       ^ 


316. 

Kari'iage,  and  not  te  cubjoct   to  the   Oispooal    of  her  hur.'band  or  lia^ble 
for  his  deb >•)?,"  and  ■bccaur.e  seci:i. on  61^1  pro"ri.do!3  that  ehe  may,  durpn^ 
marriase,   convoy  hur  leal  projoeroy  in  the   firme  manner  and  to  the   same 
extent  as  a  marri^'^'i  miir.  may,    that  the   intention  of  the  Legislature  \3.s 
to  enahle  the  wife  to  di'-.poye  of  ter  real  estate  "by  deed  in  V7hich  instru- 
ment   it  \'vaE  not  intended  to  "be  necoccary  fa"   the  hushand   to  join.     Their 
hrief  says: 

"Ue  "be]  ieve  that  it  v;as  the   intention  of  the  makers   of  oi-t  Constitu- 
tion that  the  v/ife's  separate  property  should  he  absolutely  under  her 
control   to  do  v/ith  as  she  pleased." 

(1,   3)  But    ttiis  theory,  pvircuasive  as   it  maj''  "be,    ignores   the  re- 
quirement of   section  38ol   to   set  apart  the  u.ndiEpo5ed  of  property   to  the 
survivor  in  fee  simple.     V.hile   it  is  trus   that  no  express  language  is 
found   in  the   stat"'ite   Giat  this  sliall  "be   inlieritod  hy  or  "become   the  prop- 
erty Qf  such  Eizrvivor,   still  the  only  possible   effect  to  he  given  to    the 
language  used  is   that  \\iiatGver  portion  of   the   land   the   survivor  may  right- 
fully he  allotted  comes   to  him  as  a  fee-simple  ovmer;    the  allotment  man- 
ifestly being  for  the  rrere  ascertainment  of   its   identity  and  not   as  a 
source  of  title.     Tlie  title  does  not  come  because  the   allotment    is  made, 
but  the  allotment    is  made  beca'ace  tie   title  has  come.      Ihere  is   nothing 
in  section  6160  or  6161  that  really  goes  counter  to  this  provision,  and 
giving  all  the  various  sections  relating  to   the  matter  their  proper  sig- 
nificance it  must  be  held  in  accordance  with  the  fonxer  raling-s  in  the 
cases  already  mentioned  thxit   the  plaintiff  is  entitled  to  maintain  his 
action'  to  have  parti  tior.ed  to  him.  his  pai't  of  the   land  fcaTnerly  ovmod  by 
his  deceased  v;ife   in  the   conveyance   of  \hich  he  did  not  join. 

(2)  Yiliile  he  alleges   in  his  petition  that  she  was  unduly  influenced 
to  malie  the  deed,    that   is   not  material,  for    she  could  not  by  suoh  con- 
veyance whether  unduly  influenced  or  not  deprive  her  surviving  husband 
of  his   fee-simple   interest  in  the    land   in  question. 

It  follows,    therefore,    that   the   judgment  must  be  affirmed.     All  the 
Justices  concurring. 


317. 


In  re  GlTRTJbllf'E   ESTATE. 
(Sac.   2625) 

(Supreme  Court  of  California.   Jan.  15,1918) 
(170  Pac.  402.) 

In  Band.     Appeal  from  Superior  Court,  -Tehajsa  County;   John  F.  Ellison, 
Judge . 

Proceeding  for  the  collection  of  an  inheritance  tax  on  the  estate  ^f 
Willtam  H.  Givc-n^&eyT^deceased.     From  an  order  refisins  to_  allow  the  i-ay-_ 
ment  of  the  ta::,    the  State  Controller   appeals.     Affirmed. 

Shaw,  J.     The  state  controller  has  appealed  from  an  order  of  the 
sxrperior  court  refusing  to  allow  the  payment  of  inheritance  tax  upon  the 
sum  of  Ol0»151.97,  v/hich  he  claims  v;as   subject  to  such  ta:c. 

On  April  11,  1911,   the_decedent,  U.  H.  Gujmsg^— aad  Mg,^wi£e._Earriet 
4^__Gurnsey,_e:;ecuJted_an^ inB*rufBent  -in  nrilfcing-v^^eby  it  was  agreed^he- 
tv/een~them  that  the  deposit  account  that  day  opened  vath  the  People's  Sav- 
""ffigs"3ask~iir"Giei rT joint  names,  aa3.--aIIjdepo sits  thereafter  made  to  said 
accounb  ty  either  of  them,  should  he  held  and  ov/nesd  by  said  hushand  and 
wife  as  joilit~tehants,   in  joint  tenancy.     The   instruinent  contained  other 
teims-descrip1;lTe  of  the  nature  and  legal  effect  of  the  joint  tenancy,  hut 
thsy  did  not  change   the  legal  character  of  tlia    joint  estate  thereby  crer.t- 
ed,   as  defined  at  coranon  lav/  and  as  declared  by  certion  683  of  the  Civil 
Code  and  section  16  o£  th&  Bank  Act  of  1909   (Stats.  1909,  p.  87),   then  in 
force. 

This  agreement  was  left   with  the  People's  Savings  Banlt,   and  at  the 
same  tice  and  in  pursuance  thereof  \7.  E.   Gurnsey,   out  of   the  commxinity 
property,   deposited  in  said  banlc  to  said  account  the  sum  M  v3,000.     There- 
after,  from  time  to  time,  other  money  v.■a^3  deposited  by  said  V/. .  E.  Gurn- 
sey to  said  account,   aod  at    the  date  of  his  death,  \.hich  occurred  on  Feb- 
ruary 9,  1915,   the  ar£Dunt  of   said  account  v;as  the   sum  of  $10,151.97. 

In  pursuance  of  his  claim  that  this  money  vra.s  subject  to  inlioritance 
tax,   the  appellant  introduced  the  oral  testimony  of  the  \adow,  Harriet  A. 
Gurnsey,  detailitig  the  conversation  at  the  time  said  agreement  v/as  e::eout- 
ed.     She  stated,   in  substaace,   that  the  agreement  was  e::ecuted  in  the 
bank,  and  was  delivered  to  the  cashier  at   the  time  of  the  deposit;    that 
her  husband  stated  tliat  he  wanted  to  deposit  the  money  so   that   either  he 
or  she  could  dra^/  it  out  at  any  time;  that  she  did  not  read  tlie  aGreemeut, 
and  did  not  understand  the  effect  of    it,  except  that  £b.e  knew  that  either 
one  of  them  could  dra\/  the  money  from  the  bank  by  check,    and   that  she  did 
not  really  know  that  s.lce  \;&s  a  party  to  a  joint  account  prior  to  her  hus*- 
band's  death.     It  is  clear,  hovever,   that  she   intended  to  take  by  the  a- 
greement  whatever  benefits  it  conferred  upon  her.     neither  she  nor  her 
husband  drew  any  money  from  ttie   account  during  his   lifetins. 

The  agreement  above  set  forth  is   in  no  respects  undertain  or  ambig- 
uous.    Its  meaning  is  entirely  clear,     no  testimony  by  either  party  was 
admissible  to  change  its  terms  or   its  legal  effect,   in  the  absence  of 


^ — ■^i^        si^V\ 


/  ,    f — 


^ 


•/^*^    '       ^^^      a^^^c^^^^Su^ 


318. 

fraud  or  mistake.     It  is  doulstful  if  tlie   state  authorities  could  set  up 
such  fraud  or  mistake  in  order  to  establish  the  ri^ht   to  inheritance  tax 
In  such  a  case,  but  v/hether  this  be  t.ue  or  not,   uo   such  claim  is  made 
in  this  case.     The  effect  of  the  agreernent  was  to  create  a  joint   estate 
in  the  i^roperty  to  which  it  relates,  anC.  the  evidence  introduced  could 
not,  under  these  circuiKistances,  be  allowed  in  any  way  to  change  the  terms 
or  legal  effect  of  the   agreement.     Hie  title    to  4he  4oney  deposited  pas- 
ged  out  of  the_communit y  at  the  time  of  "the  deposltv^and  it  tjjen  "became     )\<t,\ 
tho_joint_property  of  the  husband  and  v/ife,   invested  -ul  ta  all  the  attri»t . 
butes  of  such  property,  whether  the  vdfe  understood,   its  e.:act  nature  -.^eo     ^^ 
she  signed  the  a^'reement  and  accepted  its  benefits  or  not  i  ^ 

The  appellant  refers  to  many  cases  vhere  gifts  snd  other  transfers 
were  made  by  the  decedent  in  his   lifetime,  but  the  control  of   the  property 
was  retained  by  him,   r,nd  v-her©  from  the   circnmstonces  the  court  deduced 
the  conclusion  that  the   transfer  v/as  made  in  contemplation  of  deith,   or 
to  talce  effect   in  possession  ^^and  enjoyment  after  de:th.     Tliese  cas-es  have 
no  application  here.     Tlie  finding  of  the   court  belov/,   upon  sufficient  evi- 
dence to  sustain  it,  that   this   transfer  '^as  not  made  in  conterrtlat  ion  of 
death,   or  to  take  effect  in  possession  cr  enjoyment  at  or  after    death, 
excludes  the  basis  upon  \vhich   these  decisions  were  founded.     The  mere  cre- 
ation of  a  joint  account  and.  the  addition  to   it   of  deposits  made  by  v/^  of 
gift  from  tlie  conmunity  property  to  the  joint  estate,  as  we  have  Bho\^, 
do  not  constitute  conclusive  evidence   that  the  gifts  v/ere  made  in  contem- 
plation of  death,   or  v/ere  intended  to  talce  effect  at  or  after  death. 
There  is  no  force  in  the  argument  that   the  husband  had  entire  control  of 
tlie  property  from  tlie   time  of  the  deposits  until  hie  death.     It  could  be 
as  truly  said  that  the  vdfe  had  such  control.     The  agreement  determined _ 
the^erso^  who  had  jthe.  right   of  control  of  the  property,   aiai  by  its  terms 
~We  wife_hsd_g,s_full_c5ntroJ._  as   the  husb  nd.     Upon  the  death  of  either  the 
prcjperty  remained,   aal  all  of   it   remained,    the  property  of  the'  survivor,  -^"i  J 
'as'it  v/as,  ia_6oatempia.ttPg  of  Xaw,  from  Cie  fime  oT'it^s  creatioru"  '=c-A 


The  order  appealed  from  is  affirmed. 

We  concur;     Angellotti,  C.  J.;  Melvin,   J.;  Sloss,  J.;  "'ilbur,  J. 


^ 


319. 


m  re  Elll'm^S  ^7XT2. 
(Ho.    15,754.) 

(4  Cal.  Unrep.   919) 
(Supreme  Court  of  California.  Dec.  26,   1894) 

Cotriipissionor^;*  decision.     Department  2.     .\ppeal  fron  superior  court, 
San  Benito  couni-y;   JaiTiet.  P   .  Breen,   Jud^e. 

Accoun*-ivig  ■:D3r  RolDert  Cardiff  as  administrator  v;ith  tho  v;ill  ar).ne::ed 
of  the  estate  cf  Robert  Smith,.     Fron  tlie  decree  made,   the  administrator 
and  Ilary  Smith,  widow  of  testator,  appeal.     .Affirmed. 

Vaaiclief .   C.     HolDert  Smith,   X'fh.o  died  April  51,   1892,   disposed  of  all 
his  property  "by  '/SAs  la:5t  v/ill  as  follo\/s:      "1  give  and  bequeath  to  mg: 
daugliter,  lirs.  ilary  Cardiff,  no"./  of  San  Benito  c  cuuty,  California,   a  life 
estate  in  my  home  ranch  in  Gaii  Benito  county,   California,   tte  same  "being 
descrilied  as  followS;,  to  \at,  being  the  southwest  quarter  of  section  6, 
to\.iiship  15  south,   range  7  east,  H.  D.  H.;  also  sll  live  stock,   farnins 
utensils,  household  fm-niture,   and  in  fact  all  personal  property  that  may 
be  on  the  sai?.  rcJnchj   ezcceptins  money  on  liand,   secm-ities,    and  other  evi- 
dences of  money  duo  me;   to  have  and  hold  and  use  during  her  natural  life 
afj  her  ovm,   and  at  her  death  to  pass  in  fee  to  her  sons,  Robert  Cardiff 
and  Geo,  H.  Cardiff,  and  to  their  heirs   in  fee  simpja.     But,   in  the  event 
I  survive  my  said  daughter.  Ilary  Cardiff,    then,    at  m^  death,   said  property 
to  pass  directly  to  ha'   said   sons,  Robert  and  George  Cardiff.     This  be- 
quest, however,   is  not  to   take  SiDi^ect  during  the  lifetime  of  ray  v/ife, 
Mary  Smith,  vuo  is  now  residing  v/j.th  me   on  the   above-described  property. 
In  the  event  she  survives  me,   she  is   to  have  full  and  free  use  and  abso- 
lute control  of  said  real  property  aad  personal  herein  referred  to,  and 
after  her  des/ch  to  pass  as  above  provided.     Ihis  ic  made  with  full  knov/- 
ledge  of  property  rights   of  husband  and  wife,  and  with  the  lcno\/ledge  and 
•consent  of  my  said  wifec'"     The  will  further  bequeathed  one  dollar  to 
each  of  four  grandchildren  of  tl:©   testatovj  and  r.to  residue  of  testator's 
personal  property,    consictlng  of  money  and   securities,  as  follo\.'s:      To 
his  son  V/illiam  R.  Smith,   four-tenths   thereof;   to  his    son  O'ohn  A.  Smitli, 
three-tenths   thereof;    and  to  his  daughter  Jessie  Smith,   tliree-tonths  there- 
of.    The  will  moninated  said  V/illiam  R.  arx.  Jolm  A,  joint  e::ecutor£   there- 
of,  and  on  Ilay  3,   1892,   they  ;/ere  duly  appointed  as  ruch  by  the  probate 
court.     Both  qualified  and  entered  upon  the  performance  of  the  duties  of 
the  trust,  but  both  died  before  the   settlemsnt   of  their  final  account, — 
Jolm  A.,    October  19,  1892,    end  '.VilliamR,,   Oune  25,   1893,    tnou^  the  lat- 
ter had  filed  an  account  which  p^.rported  to  be  a  final  acnount,   on  June 
1,  1893.     On  July  22,   1895,,  Robert  Cardiff,   son  of  Ilgry  Cardiff,  and  grand- 
son of  the  testator,  v;af3  appointed  adzivin? otratcr  v^ith  the  v,ii3   annexed, 
who,   on  December  18,   1895,  filed  his  fi.uaL  account,   and  his  petition' re- 
presenting that  the  estate  was  in  coix'.it ion   to  be  closed,    end  preying 
that  his  final  account  be  allr./ed,  and  that  the  estate  be  distributed, 
TOiile  the  matter  of  seJtlr.ng  the  final  account  of   the  aduinis  t rater  was 
pending',   to  wit,   January  51,   1894,  llary  Smitii,  vddo  ■  of  the   testator,  fil- 
ed in  the  probate  court  her  \xritten  claimand  notice  that  all  the  property 


320. 

Of  vAiich  the    testator  died  seised  or  poscessGd  was  coramimity  property,   and 
that  she   claimed  one-half  thereof  as  not  subject  to  testamentary  disposi- 
tion hy  her  late  huEliaud       The  \vido\;  of  John  A.   Smith,    as  e::ecutri:c  of 
his   estate   and  as  heir   of  her  husband,    filed  v/ritten  objections   to  the 
final  account  of  the  administrator,   and  also  objections  to  the  claim  of 
Ilary  Smith  to   one-half  of  the   estate  of  the   testator,  alleging  that  I!ary_ 
Smith  liad  elected  to  taJce  under  the  will,  etc.     The  court,   after  settling 
the  final  accouD.t  of  the  a^.rainistrator,   foujai  tliat  all  the  property  of 
the   testator  was  commujiity  property  of  husband  and  v/ife,  but   that  the 
v/ife  of  the  tetitator   {'Aar-j  Smith)  had  elected  to  ta::e  under  the  v/ill,  and 
that  Che  had  so  taten,  and  had  sold,  conveyed,  and  released  to  Robert 
Cardiff  and  George  II.  Cardiff,  her  grandsons,   v/ho  wore  also  reversionary 
devisees   of  all  the  estate  devised  and  bequeathed  to  their  mother   (liary 
Cardiff)  and   to  their  grandiMther   (Ilary  Smith)  during  their  lives;  and 
thereupon  the  court  decreed  that  the  v.hole  estate  be  distributed  in  strict 
accordance  v/ith  the  \/ill.     Tlie  administrator,  Robert  Cardiff,   and  ITai-y 
Smith,   widow  of  the  testator,   appeal  from  the  order  settlinj;  the  adminis- 
trator's final  accoimt,  and  also  from  the  decree  of  di stribution. 

The  appeals  come  here  on  the  judg-nent  roll,  consisting  of  the  final 
account  as  rendered  by  the  administrator,   the  petition  of  the  adjninistra- 
tor  for  the  allowance  of  his  account  and  for  distribution  of  the   estate, 
the  written  objections   to  the  account,  the  v/ritten  notice  of  Mary  Smith 
tliat  she  claimed  one-half  of  the  entire  estate,    the  written  findings  of 
the  court,   the   oi'der  of  the  coui-t  settling  the  administrator's  final  ac- 
count,  and  the  decree  of  distribution.     Estate  of  Isaacs,   50  Cal.   106; 
Estate   of  Page,    57  Cal.   240;  Ililler  v.   Lvcz,   100  Cal.   609,    35  Pac.   345, 
659.     There   is  no  bill  of  exceptions,  nor  any  statement   of  evidences, 
thoug'h  it  appears  tlaat  the  findings   of  fact  are  based  upon  evidence  pro- 
duced by  the  parties.     Tlierefore  the  findir^s   of  fact,  at  least  so  far  as 
they  are  self-consistent,  must  be  accepted  as  true.     The  appellants  con- 
tend that  the  court  erred  in  adstributiuG;  the  property  according  to  the 
will  of  r?obert  Smith  to  the  prejudice   of  the  rijit  of  appellant  Ilary  Smith 
to   one-half   of  all   tlie  property,   real  and  personal,  described  in  the  v/ill. 
In  support  of    Ciis  point  they  claim  that  the   language  of  tine  will  does 
not  sufficiently  evince  an  intention  of  the  testator  to  devise  more   than 
his   omi  half   of  the  community  property  to   overcome  the  presumption  to  the 
contrary  as  held   in  the  cases.    In  re  Gilmore,   81  Cal.   240,  22  Pac.   655; 
In  ro  Gwin'E  Estate,  77  Cal.  513,   19  Pac.   527;   ard  Estate  of  Silvey,  42 
Cal.   210.     But  I  thini:  tliis   is  a  mistal^,  and  that  the  language  of  the 
vail  clearly  indicates  the   intention  of  the    testator  to  dispose  of  all 
the  property  therein  described,    including  the   interest  of  his  v/ife.      Cn 
the  construction  given  it  by  aFpellents,   no  single  provision  of  the  vill 
as  er^irossod  can  be  executed  -./ithout  disturbing  and  partly  defeating  all 
oGicrs.     Besides,    it    is  e;;presEly  stated  that  the  \/xll  "is  nnde  with  full 
Imo\/ledge  of  property  rights   of  husband  and  v/ife,   and  -./ith  the  Imowledge 
and  consent  of  my  said  v/ife.''     Tliis   indicates  very  clearly  that  he  actual- 
ly ;3iew  -./hat  he   is  presumed  to  liave  Imov/n,  namely,   the   lav;  gxDverning  the 
rights  of  husband  and  ydfe  as  to  coninunity  property;  and  tliat  he   intended 
to  dispose  of  her  intsiest  in  the  pi-operty  in  a  way  vhich  v/ould  not  be 
valid  vathout  her  consent.     And,   conceding  that  this  v.-ould  not  be  compe- 
tent evic'^nce  of  her  consent,   it   is   nevertheless  CiOmpetent  and  satisfact- 
ory evidence  of  his   intention  specifically  to  dispose  of  each  parcel  of 
property  described  in  the  v/ill. 


It   is  contended,,  ho\vever,    that  tie  v/idow  never  elected  to    take,   and 
nearer  did  take,  under  the  will.     But,    as  alDOve  shov/a,    the  findings   of  the 
coxirt  ■belo\/  are  conclusive  upon  theiic  points.     As   to  ter  election.,   that 
court  found   the  naked  ultimate  fact   "that  said  Ilary  Bmith,   vd.do\7  of  said 
Robert  Smith,  has  elected  to   take  under  said  vjill"i  and  also  the  proba- 
tive fact  that  after  the  death  of  her  husband,  and  prior    to  January,   1394, 
she  said  to  Robert  Cardiff  that   "she  v/ished  the   vail   to  stand."     As    co 
the  actual  taking  of   the  property  luoder  the  will  (bhe  court  found:      "That 
since  the  death  of   said  Robert  Gmith  said  Ilary  Smith,   his  v;idov/,   convey- 
ed all  her  interest  in  said  property,  mentioned  in  said  vdll  as  ve.sting 
a  life  estate  therein  upon  said  \7idow,    to  Robert  aad  George  Cardiff. 
*     *     *  She  has  remained  in  possession  of  said  real  property,   and  said 
personal  property  upon  aai    about    said  real  property,   being  the  property 
described  in  the  vnll  as  becjueathed  to  her  a  life  estate,  until   the   year 
1893,  when  she  conveyed  all  her   interest   therein  as  hereinbefore  stated." 
It  should  be   observed  here  that  I.Iary  Cardiff,    to  whom  vas  de^jised  the 
second  life  estate   in  the  land,  and  perscnal  property  thereon,   died  after 
the  death  of   the  testator,  co  that  her  life  estate  never  vested;  and 
therefore,   the  effect  of   the  conveyance  or  release  of  the  life  estate  of 
Mary  Smith  to  Robert  and   Georse  Cardiff,  the  reversioners   in  fee,  was  to 
invest   them  with  the  absolute    title  to  all   the  lalP-  and  personal  prop- 
erty thereon  under  the  will.     But   if  the  v/ill  is  not  valid  as   to  the 
widoT/'s  half  of  that  property,   then  her  life  estate  and  the  reversion  to 
Robert  ard   George  Cardiff  were  restricted  to  the  testator's  half  of  the 
land  and  perscnal  property  thereon.     Another  effect  of  restricting  the 
v.lll   to  the  testator's  half  of   the  proierty  v^rould  be  to  deprive  V/illiam 
R.,   John  A,,  and  Jessie  Smith  of  one-half  of  the  specific   legacies  be- 
queathed to  them.      I  think  the  findings   of    fact  bring  this  case' under 
the  rule  announced  in  the  case   of  Ilorrison  v.  Bo\,man,   29  Cal.  347,   af- 
firmed in  Hoe  v.  Splivalo,   54  Cal.  207.      In  the  former  of  these  cases 
Ilr.  Justice  Curry,   after  reviewing  the  authorities,  stated  the  rule   as 
follov/s:      "A  testamentary  provision  in  lieu  of  a  devisee's   or   legatee's 
proprietary  ri^t,    in  order  to  render  it  such  upon  acceptance  of   it,  must 
be  declared  in  terms   to  be  given  in  lieu  of  such  right;   or  that  intention 
must  be  deduced  by  clear  and  manifest   implication  from  the  vail,    foimded 
upon  the   fact   that  the  claim  to  such,  proprietary'-  right  Virould  be  incon- 
sistent with  the   mil,    or  so  repugnant   to   its  dispositions  as  to  disturb 
and  defeat  them.   *     *     *   Tlie    intention  of  the  testator  must  be  kept   in 
view  as  the  pole  star  in  the  constriction  or  interpretation  of  liis  will; 
and   it  is  not  to  be  presumed,    in  the  absence  of  a  manifest  intent  on  his 
part,   that  he  designed  to  make  disposition  of  any  property  not  his  o\m. 
But  \hen  it  does  so  appear,  and  the  owner   of  such  property'  accepts  a 
legacy  or  devise  under  the   vail,   vhich  acceptance  necessarily  operates 
to  give  effect   to  the   vail  as   an  entire  disposition  by  the    testator,   such 
acceptance  must,  by  the  corditions   on  v/hich  it  is   fouaded,   be  held  to  be 
a  confirmation  of  the  dispositions   of  the  v/ill."     Hone   of  the  cases  cited 
by  appellant  conflict  v/ith  that  of  llori-ison  v.  Bowman.      I  think  the   order 
settling  the  administrator's  final  account  and  the  decree  of  distribution 
should  be  affirmed. 

\7e  concur:     SE/iRLS,    C;    OHvIPLE,    C- 

Per  Curiam.     For   the  reasons  given  in  the  foregoing  opinion,    the 
order  settling  the  administrator's  final  accoxint  acd  the  decree  of  dis- 
tribution are  affirmed. 


322. 


LUraf  A.  PXm,  Respondent,   v.  DAVID  FI3?GUCS0II, 
AppeiXaat. 

(3  ys«h.   356     1B91.) 

x.ppea;.  from  Superior   "Court,     Kjug  County. 

Tt^  factr.  arc  fully  stated  in  the   opinion.  ■ 

The  opinion  of  the  court  was  delivered  lay 

Scott,   J.  —  Tl'iis   is  an  action  in  the  ng.ture  of  ejecttLcat,   "brought  by 
_respon&eiit_to--^g£u^o3A&s^iXujr-&dta— lgt3.  siti^ate   in  the  city  of  Seattle, 
Zing  ccuuty.     Tho  j-adgn:ent   of  the  coiii't  "belot?  v;as   in  the  plainETfF'c  favor 
f|6r  an  viiidivic[ecl~or5-half  of  the j3roj2srtyj_and  for  tiie  defendant  for  tho 
othejThaLf .     The  defendant  appeals.     Elie  complaint   is    ill  the   ordloafy^ f orm 
of  complaint s~Tn  a2t.loan"oI'  this   nature,   sotting  up  ovrtiership  aad  the 
right  of  poosessio:^  of   the  de.oanded  premipos.     Ihe  anf"A.'er  deni3S  all  of 
the  allegaticnu  of  t'rs  ccmp]aint,   and   a3.l3gos  that  tls    d^^fendaat  v/as   the 
sole   o-rmor  in  fee  of   said  procaines,  and  rightfully  in  pcr<seaslon-      The 
reply  douios  the  owner ^h?.p  and  right  of  possession  of   the  defendant ~      Eie 
case  vas  tried  by  the  court  vdthout  a  jury,   and  the  appellant  ba^es  his 
contention  for  a  reversal  of  the   judgment  upon  the   findings  of  fact. 

It  c5?x3ears  by  said  findings  that   tlte  respondent  is  the  v/idow  of  one 
John  H.  Ryan,  \.ho  dl9d  in  this   stats  on  tlie   23th  day   of  Pebruaxy,   1880, 
inte;;tatc,   leaving  no  lineal  descendants.     Tha.t  in  J-.?.ne ,    18/7,  tei.  IT. 
Fell  a±i.  luoy  G.   Bell,   \ho  v.-ere  the   ovvners  in  fee  si/aul'e  of  the  real  es- 
ta'.ii  in  c  on  trover -ry-  in  this  action,  duly  p.zr.er.vt^'^.  ajxi.  delivered  a  deed 
thereof  to  said  John  H.  E  yan.      Tliat   the  respoiir^cnit  a>f'.  field  John  H.  Eyan 
v»-ere  married  previous   to  this  tinE,  and  v/ere   irhon  living  together  as  hus- 
band and  v/ife;   and  that  I'B  paid  the  piri-chase  price  of  said  real  estate 
out   of  money  acquired  during  the  said  ma.rriage  by  their   joint   labors. 
That  in  April,   1378,   said  Jchn  K.  Eyan  end  said  plaintiff  duly  mortgaged 
said  premier;?  to   one  Joremiah  S.  Driggs,,    to  secure  the  pajnnGnt  of  a  cer- 
tain promissory  note  of  said  Jolm  H.  Eyan  to  said  lOriggs,  bearing  date  of 
said  day,   for  the  sum  of  0250,   and  interest  at   tie  rate  of  one  axd  cne- 
half  per  cent,  per  month  from  date  until  paid,   -.hioh  said  mortgage  and 
note  ',/ere  subsecuently  assigned  to   one  John.  Kennedy.     ISat  on  the   7th  day 
of  Hay,   1890,  Sben  S.   Osborne  ras,  by  the  probato  court  of  Sing  couT^cy, 
Yfeshington  Territory,   duly  a]?pointed  aJ->^iinr.sx.racor   of  the  estate  of  v'aid 
Jolm  K.  Ryan,   deceased,   and  duly  qualified  and  ez:ter8d  upon  the  diktiec; 
of  such  administrator.     That  on  tho   26th  of  July,   1850,   said  Osborne,  as 
such  administrator;   presented  to  said  probate  court  his   verified  petition, 
reciting-  the   o::istence  of  sadd  mortgage  and  note;   the  non-pa;/ment  thexx-o^, 
except  interest  to  the  amount   of  $45;   the  assignment   thereof  to  the  said 
ileunedy;   tl3  presentation  by  said  Kennedy  cf  hi,i  claim  on  said  note  and 
mortgage ;   anc.  allo\;ance  thereof  by  said  petitioner  and  said  probate  court: 
that  there  v.^ere  not  sufficient  personal  a^set;:  to  pay  the   funeral  expenses 
of  said  deceased,  expenses  of  his  last  sJ3lu:-et;s,   and  other  claims  again?" t 
his    estate,  and  that  there  \.-ere  no  per'iora'.  aBsets  v;l:av,roeve_-  t'nat  could 
be  applied  toward  the  redemption  of  said  real  property;    that  such  redercp- 


tiOD  v/oulcL  not  Tie  ■beneficial  to  the  Qr.'r,r.te,  and  ".■ould.  "he  very  jn;jv.r-!.OT!>?  to 
tlie  other  ovcclilors,    rnl  that  ruoh  rKde.'r.pfc?.on  wa*";  \-;';oily  iney-pod.i c  r."  ;   ti:a.c 
it  v;ar5  nfioe^s-^i'-'j   tc    boI.I.  -(.I:!::  -,7l\o'.i.f'  cjf  f^.zyl  ro'ij.  ettr.te   to  pay  tijci  raid  cj- 
maod  arji  tlw  oor^fc  azid  e-!Ci;i;;. c-:-. P'i  of  r^'j.e,   aii  tl©  othor  lieii--;,   end.  tact  '.t 
v/as  not  lito^ly  there  would  Ije  mv.^h   (if  ar.y)   s-'jrpl-vs,   a;-''.'!   that  s-'ioh  n'a.r?l:AtR 
(if  any)  wcuid  lie  n-quirnd  to  p^.y  th?;  cj.ai.raf;  of  tho   ctnpr  credicors  vhioii. 
had  boeu  allpwcirt-s  a;a-i  pva>j.rg  r..'j,  ori?r  dirscfciix?  thra  Sfde  and  conveyaroo 
of  raid  rGa;L  pr'-P^r'-zy,    ajcoiXL5::i^'  to  the  practice  of  taid  court,  and  the 
app?.icati.on  cf  the  prc^CfJeds  to   the  paymeut  a'cA  discharge  of  said  mortgage 
de'b'';,   after  pryiDS'  e:n?o5o.r.es  of  cjch  «a'.o ,   aT:d  that  the  rer;idMe   (if  any) 
■fae  diP3-xi::;cd  of   La  due  coaroe  of  adminj  strati  on.     That  thereafter,   and  on 
said  2t>th  day   of  Jidy,   1980,   OL^id  court,  u^pon  caid  petition,  made  aoa  ordax- 
directing  the  r3y..vl  adpinittrator,  ETjen  S.   Or-ljort)o,   to  r^eli  the  real  estate 
heroiuberore  d3,':.'?ri'Le.-'. ,   Cither  iu  onp  parcel   or   iu  :."'u'b:!.i  vis  ions,   a3  the 
said  adnlr.istrator  Kiir^ht  ^udge  niorst  >)enefioial  to   sard  estate,  at  .pv.tlic 
auction,    to   tho  higiie.Jit  Udder  for  cash    go3d  coin  of    the  Ttoited  States, 
in  the  ma-icer  pre-sorifced  hy  lav/.;    that  upir.i  sich  naj-e  and  payment  of  the 
purchase  price,    Raid  adr^iivistrator  e:;ecute  a  oon'.'cya.ric e  to  the  pnrchasnr, 
Vihich  {iliou.ld  convey  to  such  parclact.r>or  s3.1  the  right,   title   and   ir.tiires""; 
which  the  deoeaj^ed  VvOuld  have  had  in  i.iich  ?rc"03:c"'/y,  had  not  the  mc  "occn. 
mortgaged  hy  ?iir.;   that  the  prccei.=)c'.s  cf  svxili  sale  Tie  applied  tc  the  P3:w''ae.T.t 
and  diC3harge  of  s'-^.on  nortg-x-te,  and   ':hat  the  residue  "be  t!:".f-pofi,sd  :<"   x'-'.  dv.a 
cource  of  adininit^trat.loi:.;   that  the  said  ad.':rn\.^trat.-^r  rjaly>  dae  reiir.ti  cf 
his  proceedings  to  said  uoi.irt.     That  tircreaftor,    to  v.-i.t,   on  tjeptc:cu";f?r  11, 
1890,   «aid  administravcr  cold  said  real  estato  at  pahli'c  vcn'ue  to  yaid 
John  Kennedy,    in   the  naaner  pr y ■-,.■; rib od  in  sail   (xr-ier  of  .saZo,  mjide  clue 
report  of  said  tale,   and  the  saue  waf   oy  said  court  duly  approved  aiid  con- 
firmed on  the    S-'-d  day   of  n^J^embor,   1^80.      That  on  the   IGth  day  of  Deptcm- 
her,    1880,   saidEhcn  S.    Osborn'^,   as  admini.-M;rator  as  aforesaid ,  executed, 
acloiowledged  and  deJivered  to  said  purcha-jer,   John  Ifenn.<^dy,   a  deed  of 
"all  the  rj.:^t,    title,   interest  and  estate  of  the  e.^tate  of  tho   said  John 
K.  Ryan,   deceased,-'  at  tho  tice  of  his  deach,   and  also  all  the  right,   t.;.tle 
and  interest  v/iriich  the  said  deceased  T.ould  liave  hail  in  Said  property  had 
not   the  sar>e  bean  mortgaged  by  taid  decoassd,  v,hioh  deed  v.as  approved  by 
the  judge  of  sa:il  probate  covjrt  on  th&  EVth  day  of  September,    1860.     Thrt 
thereafter.,  "by  sualry  mo^iiie  conveyances,    the  defendant  lierein  became,   ar.d 
vvas  at  the  time   of  the  comnenceirent   of  this  action,    the    o\/nor  of  v;hatever 
intereist  vested  in  said  Kennedy  by  virtue   of  the  sale  last  afcre!3aid. 
That  at  the  time  of  tl3  cor/UTienf'.ement   of  this  action  said  defendant,   by  his 
tenant,   vss   in  er.clu-j,.ve  po'^j.ooLioa  of  said  real  estate,  claiming  to  be 
the  OYm.er  of  the   whole   thereof  in  fee. 

And  as  conclusions    of    la'.v  the   cou..'t  found — 

■•That,  at  the  time  of  the  death  of  said  Jol-n  H.  Eyan,   the  real  c?3tp.te 
described  in  the  ccrr.plaint  v/as  community  property  of  Fa\d  Jchi>  H>  Rr/a't:.  a'A>l 
this  plaintiff;  that  upo.o   the  death  of  said  Jolm  II.  Ryan,   the  title    Lo  th.r 
undivided  one-hqlf  of  sa.id  real  estate  v<-as  in  tho  plaiatiff ,  and  that     ?a'.j 
interest  vi/as  ur.affected  by  tins  proceeli:Tgs  of  the  probate  court  an.d  admj.n- 
istrator  aforesaid;   that  by  said  proce;edings  axd  sale  said  Jolm  Kennedy 
became  the   ov^\er  in  foe  of  the  und.ivided  c-'iP-lial^  of  sa.U  real  property, 
■\.hich  sail?,  estate  is  now  vested  in  the  defendant  herein;   that  piaintif;*" 
Lucy  A.  Ryan  vss,   at  the  cotffiaear.ement   of  this  transaction,   and  now  i?;,   r>-.'-5 
ov.iisr  in  fee  of   the  undivided  one-half  of  all  the  lots  and  parcels  of  ':^Ad. 


324 . 

hereinabove  decsribed,  and  entit?.ed   to   the   immediate  i::'Ossessio"ii  of  tlxj 
same;    thett  t>ie  defendant  im.lawruily  witl-JaoIds  from  the  plaintiff  the  To^- 
session  of  said  lialf   of  said  pvoperkya" 

It  is  not  questioned  upon  the  facts  found  hut   that   the  ta~id  afore- 
said was  corranunity  propor-ya      Ihe.  controversy  is  as   to  v/hat  the  estate 
wafe  which  the  probate  court  acted  upon.     Kie  position  taken  by  respondent 
as   to  -Che  coEv.unity  j-rrpi^r-^y,  which  v;a3   siistained  by  the  lov/er  court,    is 
that  upon  tlcv  d^iieaso  cf   vhe  husberd  only  his   interest   therein  cculd  be 
administered  itpori,   v;Mvh  wp-s  or.ij-half j   and   iiiat  the  other  half  belonged 
to  the  wife  and  wh's   ?.n  -r.o  wlac  affect'.^d  by  the  proceedings   in  the  probate 
court,  and  thera  is  n:.'.:ib.  to  be   said   in  support  of   this  contention.-.     But 
after  a  careful  oca-f.deration  of   the  question,  and  from  the  interminable 
confusion  that  would  cde^'Wise  result,  we  are  forced  to  the  conclusion 
that  upon  the  death  of  one  Eembev  of  the  community  it  is  the  community 
estsite  which  is   to  be  a'^'-ministered  upon  for  the  pxu-pose  of  settling  tha 
claims  against   the  cora:'ii''nity,  and  that   in  this   case  the  probate  court  not 
only  acted  upon  the  sepa".Mte  property  of   John  H.  Syan,   if  he  had  any,  but 
also  upog   lifed  community  propei-ty  of  the  deceased  and  of   Lucy  X.  B.ysn.     In 
Holyoke  v.  Jackson,   S  \yash.   I*.   239,   Greenaj,   C.   J.,    in  speaking  of  this 
relationship,    says: 

"In  it,    the  proprietary  interests  of  husband  and  wife  are  equal,   and 
those  interests  do  not  seem  to  be  united  merely,   but  unified;   not  mixed 
or  blent 5   but   identified.     It  is,   sni  generis,   a  creature  of   the  statute. 
By  virtue   of  zYb   statute  this  husband  and -wife  creature  acquires  property." 

This  property  is  liable  for  the  debts  of  the  community.     Sections 
2411  and  2412  of  the  Code  of   1831,  upon  tliis   subject,   are  as  follows; 

"Sec.   2411,     Upon  the  death  of  either  h".sband  or  wife,    one-half  cf 
the  community  property  shall  go   tp  the  survivor,  subject  to  tlie  community 
debts,    ard  the   othor  half  shall  be   si.bject  to  the    testamentary  disposit- 
ion of  the  deceased  husband  or  wife,  subject  also  to  the  corsnunity  debts. 

"Ssc.   2412,     In  case  no  testamentary  disposition  shall  have  been 
made  by  the  deceased  hi;.£band   or  vdfe  of  his   or  her  half  of  the  community 
property,    it    shall  descend  equally  to  the   legitimate  issuo  of  his,  her  or 
their  bodies.     If  there  be  no  issue   of  said  deceased  living  or  none  of 
their  representatives   living,    then  the  said  community  property  shall  all 
pass   to   the  sur\'-ivor,    to  tifi   exclusioh  cf  collateral  heirs,    subfect   to 
the  community  debts,    the  family  allowance  and  the  charges  and  e::penseE  of 
administration . " 

Neither  one  ovms  any  specific  part  o?    this  property  before  the  dis- 
solution of   the  community,  and  upon  its  dis';clution  by  the  death  of    one 
member  no  part  of   it  can  vest   in  the  survivor  e::cept  subject  to    the  com- 
munity debts.      In  administering  upon  the  estate  of  tie  deceased  member, 
communitj''  debts   are  proper  charges  against   the   same.      The  interest  of  the 
sursriving  member  in  the  community  property  m--ist  be  subjedted  to   its  just 
share  of  this  indebtedness  in   some  manner.     T.f  this  whole  property  was 
not  under  the   jurisdiction  of   fiae  probate  co-iirtj,  under  the  circum«5tances 
of  this  case,   the  interest   of   the   survivor  could  not  be  -^3de  to  respond^ 
to  any  part  of   these  claims   in  the   administration  proceedings.     Can  ic  b© 


X' 

■5. 


325. 

said  tliat   it   is  the  inteait  or  policy  of  tY£  lav;  that  creditors  muct  prove 
thRir  claims   agar.n-st   tlve  ccrarnrr'ity  in  tho  probate  court  la  tho  firi^t  ro.- 
stance,   in  order  to  reach  ti:r>   vrc^rest  of  tho  deceased  man'ber  in  the  com- 
munity property,  and  in,  case  of  a  deficisncy  be  driven  to  another  forum 
to  reach   the  half  interest  of  the  surviving  member  in  that  sane  Property,. 
equally  liable  for  tbat  same  debt?     Or  toat,  -.vhere  the  interest  of  r,;;ci  'le- 
ceased   in  sucli  prci^erty  has  borne  an  urduo   El:a.re  of  these  debts,   tV.=!  f.e-i.rs 
of  such  raaaber   sjiould  be  compelled  to  bi-in^  an  action  against  the  siiOvL/or 
for  a  contribution?     The  la-'  abhors  a  multiplicity  of  suits.     Buri-^-i;  ^-^.b 
lifetiite   of  the   commusji  cy,    its  property  can  be  reached  for  the  pajir.3ti'.;  of 
a  community  debt  in  one  pro-.;eediug.     Upon  tw  death  of  either  partj   tho 
community  eiods  upon  the   instant,  but   tte  relationship  of  the  partie?^.  ii 
the  property  as  to   its  liability  for  flie   cof.inunity  debts  is  not  alterci. 
These  debts  are  not  postponed  until  the  death  of   fhe.  other  member,  c^jv?. 
tliere  was  no  way  oC  reaching   the   interest  of    tlie   deceased  mctfocr  in   f'.^rli 
property  for  tne  payment  of  thene  debts  v^r^re  the   same  were  not  secuiei  by 
mortgage,  except  by  applying  to  the  probate  co\irt   in  the  first  inst3Z..c<^. 
and  than  bringing  an  action  in  caae  of  a  disallowance.     Othonvise  snch 
claims  would  be  barred  after  the  lapse  of  time   specified  by  law  within 
which  to  present  tne  same — at  least  co  the  e::tent  of  ever  afterward  'oro- 
ceeding  against  tho   ectato  of  the  deceased.     Tlie    interest  of  the  surviv- 
ing member  in  the  cojiiTiunity  property  may  be   likened  to    that   of  a  lineal 
heir  of  the  deceased.     It  is    true  the  deceased  could  have  devised  th"   one- 
hslf  thereof  to  any  one,   and  thus  have  e::cluded  the   heir,   and    that  hi 
could  not  laave  affectoc.  the  right   of  tlie  survivor  to  the    other  half..     Tlie 
statute  e:rpressly  provides  for  this.     Sut  at  no  time  during  his  lif?-Mme 
could  he  liave  alicnatod  his    interest  in  the  community  real  estate,   or  any 
part   of   it,  by  his    sols  act.      The  property  \ -as  treated  as  an  entirety  in 
this   respect,    and  it   rec^uirod  the  act   of  both  parties    to  alienate  any  part 
of  it.     It   stands  upon  a  different  footing  than  th;,t  of  CJay  other  proportj'-. 
And  the  interest  of  tie  surviving-  member  therein,    so  far  as  the  payr-ienc  of 
the  debts  of    the  community  is   concerned,   should  not  be  allowed  to  vest   to 
deprive    tho  court  of   jurisdiction  over  the  vvhole  property  for  this  p-uposc. 
Such  inter .:st  should  bo  treated   the   same  as   that  of   tha  heir   or  devisee. 
The  statate  says  one-half  shall  go  th  the   survivor  subject  to  the  commun- 
ity debts,    ::jxC  f ro.a  Xh.o  very  nature  of  iho  case   it  is  held  in  aboyanco  or 
suspended  to   that  c.:tont,    aid  cannot  go   until  tioso  matters  arc  dotcrpin- 
od  and  disposed  of,    aid  that   vhich  is    to  go  is  thus  ascertained.     Other- 
wise  it  waild  relegate  th3  simple,   straightforward  proceeding  of  admini-st- 
ering  upon  the  whole     property  to  the   av.-Icward  and   involved  one,  to  say 
tho  least,  cvjn  if  there  v/as  cny  authority  for    it,   of  administering  ijrppn 
the   interest  of   tlic  deceased  in  such  property.     Ho  way  is  pointed  out   in 
which,    to   obtain  a  partition  or  division  of   it    as  a  preliminary  step,   or 
for  obtaining  possession  thereof,    as   in  the   case  of  a  partnership.     It 
seems  to  us  it   is  the   intention  of    the  lav/  that  upon  the   death  of  cither 
spouse  the  vhole  couVironity  estete   is  subject   to   administration  proceed  •- 
ings  for  Qio  payment  of  comrxonity  debts,   and  for  distrrbution.     As  tc 
what  authority   an  D;:ccutor  would  have  over  it  v/o  do  not  decide,  but  the 
whole  community'  property  \.-ould  necessarily  be  brought  under  the    juri^-diit- 
ion  of   the  court,  and  disposed  of  in  some  manner. 

The  probate  court  of  King  countyj   by  reason  of  the   location  of  the 
property,    th-   dissolution  of  the  community  by  tie  death  of  one  of   its 
members,    snd    the   due   ap.'Ointmont  of  the  administrator,   obtained  ^urisdict- 


326. 

ioa  over  the  Icndc  hoi'o  in  controversy.     Ho  question  is  raisod  over  the 
rcsularity  of   the  initiatory  proceeding's.     But  it   is  clainod  that  Lucy 
•A.  Ryan  liad  no  notice  of  the  sr.lc  of   th:.£e  lands,   or  of  the  pendency  of 
the   special  procGodin:;  under  \;hich  the  same  v/as  ordered.     The  administia- 
tion  of  an  estate  is  a  proceeding-  in  rcra,  and  notice  was  not  neCGSsary  c.: 
cept  as  required  "by  statute.     In  (Jriguon'c  Lessee  v.  Astor,   2  Eow.  319^ 
Baldv/in,  J,,   says: 

"In  caccs  in  personam,  \hor:;  thoro  aro  adverse  Parties,   the  court 
must  have  po\.cr  over  tha  sxt"bJoct  matter   an?,  the  parties;  Tjut   on  a  proceed- 
ing to  sell  the  ro£,l  estate  of  an  indotted  intoctato,   there  are  no  adver- 
sary partioE,  the  proceeding-  is  in  rem,    tlie  administrator  represents  tlie 
land    (11  S.   an?-  B.  452);    they  aro  analogous  to  proceedinss  in  the   admir- 
alty, •..•here  the  only  ciucstion  of  jurisdiction  is  the  pov/er  of    the  court 
over  the  thin^",  the  suoject-raattor  before  them,   -.Ithout  regard  to  the  per- 
sons v:ho  Kay  have  an  interest  in  it;  all  the  v.xjrld  arc  parties.     In  the 
orphans'   court,  and  all  courts  v.ho  have  pov.-or  to  sell  the  estates  of  in- 
testates, their  action  operates  on  th3  estate,  not  on  the  heirs  of  the   in- 
testate; a  purchaser  claims,  not   their  title,  but  one  paramount .     11  S. 
and  R.  426.     The  estate  passes  to  him  by  operation  of  lav.'.     11  S.   and  R. 
428.      The  sale  is  a  proceedin-,'  in  rem,    to  vhich  all  claiming  under  the    in- 
testate are  parties   (11  S.   end  R.  429),  v,'hich  directs  tho  title  of  the 
deceased.     11  E . eand  R.  450." 

And  see  'Vymaa  v.  Campbell,   6  Porter,   219;  Freaman  on  Judgments   (3d 
od.).  Sections  608,   509. 

The  lands   in  question  v/ere  sold  under  Sections  1523  and  1524  of  tho 
1881  Code,  which  aro  ae  follows: 

"Soc.  1523.     If  any  person  die,  having  mortgaged  any  real  or  personal 
estate,  and  shall  not  have  devised  the  same   or  provided  for  the   redempt- 
ion thereof  by  will,   fi^  probate  court,   upon  the  application  of  any  person 
interested,  may  order  the   ericcutor  or  ac' sinistra  tor   to  redoon  tho   estate 
out  of  the  personal  assets,   if   it  should  appear  to   the   satisfaction  of   the 
court   that  such  redemption  \/auld  be  beneficial   to   the   estate  and  not   in- 
jurious to  creditors. 

"Sec.  1524.     If  such  redemption  be  not  deemed  ejrpediont,   the  court 
shall  order  cudi  property  to  b^   sold  at  public  sale,   viiich  sale  shall  be 
with  the  same  notice  and  conducted  in  tho  same  manner  as  required  in  othe:- 
cases  of  real  estate  provided  for  in  this  act,  and    tlie    o;:ocutor  or   admin- 
istrator shall  thereupon  e::ecutc  a  conveyance  thereof   to   fho  purchaser, 
which  conveyance  sIbII  be  effectual' to  convey  to  the  purchaser  all   the 
right,    title  and   interest  v/hich  tha  deceased  would  have  had  in  the  prop- 
erty had  not   the  same  been  mortgaged  by  him,   and  the  purchase  money,   after 
paying  the   expenses  of   tlie  sale,  shall  first  be  applied  to  the  payment 
and  discharge  of  such  raortge.ge,    aid  the-  residue  in  due  course  of   adminis- 
tration.    If  said  sale  of  the  mortgaged  premises'  shall  be  insufficient   to 
secure  the  mortgage  debt,    the  mortgagee  shall  file  a  claim  for  balance, 
authenticated  as  other  claims,    and  payable  in  due  course  of  admins itr at ion, 

notice  of  the    sale  was  given,  as  provided  by  Sec.  1504,  providing 
for  a  notice   of  sale  of  real  estate  in  probate  proceedings , a nd   this  was 


327. 

the  only  notice  required.      The  proceedings  are  admit  tod  to  have  teen 
regular  uMcr  thccc  soctions.       How,    tlicn,  v/liat  did  the  probato  court 
sell?     The  claim\7r,s  a  charge  upun  the  v/ho?.e   of  said  real  estate.     "Dio 
petition  recites  "that   it  v/as  noccssary  to  sell  the  whole   of  said  real 
estate."       The    order  of  the  cot:rt  diiontcd  it  all  to  "bo  sold.     The   order, 
following  the  statute,   in  spoal'dng  of  the  canvoysmcc,  uses  the  -v/ord  "de- 
ceased" instead  of   "nor t^asor , "  v/hicli  was  evidently  meant.     Vi'horo  the 
husband  and  v/ifc  v;crc  mortgagors,    it  should  loavc  'been  interpreted  to  mean 
"both  of  them,   even  "before  the  coEPOTAnity  system  was  oEta"bllchcd,  whore   the 
legal  title   to  the   laxd  was  in  the  doceasod,   those  statutes  "being  then  in 
force.     Such  a  proceed j.?.ig  would  have  carried  scnc thing  itfore  than  the  "bare 
interest  of  the  deceased;    it  would  liavc  cut  off  the  dower  right   of  the 
wife,  and  have  passed  the  whole  title,  which  was   then  unquestiona"bly  to 
"be  administered  upon-     St.   Clair  v.  Ilorrls ,   9  Ohio,  16.     As  no  nev;  pro- 
visions v/ore  made   therefor  in  this  respect  when  the  community  system  vra,s 
adopted,    it  was  adopted  with  reference  to  the  prohate  law  as   it  then 
stood,  which  must  "be  construed  as  emtracirg   the  new  system  vathout  any 
unnecessary   radical  changes  wluch  were  clearly  not  intended  to  "be   effect- 
ed.    But  that  the  effect  now  given  to  the  law  in  c[ueEtion,   under  the 
present  system,   is  right,   is  rendered  if  anything  more  certain  "by  the  new 
system  itself.     Here  there  was  in  effect  but  one  moi-tgagor,  Qnd  that  was 
tl;e  community,  although  it  did  talSB   t3ie  joint  act  of  both  parties   to 
create   the  lien.     It  may  be  said  that   the  corcmunity  v/as  deceased  also — 
it  ended  with  the  death  of  ■Gie  husband.     Per    the  salx^   of  economy  and  the 
convenience  of  all  parties,    its  entire  business  relations  should  be  set- 
tled, and   its  disposition  effected  at  one   time  and   in  the  same  proceed- 
ings.    Such  is  the  purpose  of  the  lav;,     ffliic  particular  step  under  Sec. 
1523  and  1524  in  the  administration  proceedings  was  evidently  intended 
as  a  sort  of  foreclosure  of  tte  mortgage  -vSiere  a  sale  of  ttB  land  was 
ordered,   in  lieu  of  the  ordinary  foreclosure  of  the  mortgage  v/here  a  sale 
of  the  land  was  ordered,    in  lieu  of  the  ordinary  foreclosure,   although 
any  interested  party  could  have   instituted  it  by  petitioning  for  a  re- 
demption.      Ihe  faot  that  thi3  mortgagee  could  "be  coerced  into  that  pro- 
ceeding is  a  verj'  strong  reason  for  holding  that   it  was  intended  to  af- 
ford him  a  complete  remedy  therein.     Otl::Drv,'ise,    in  case  of  inadequate 
security'-,    if   only  the   interest  of  one  member  of  the  community  could  be 
sold,  and  there  were  no  other  assets,  the  mortgagee  \;ould  be   subjected 
to  the  cost   of  t\7o  proceedings,   the  special  one  in  the  probate  court  to 
reach  the    one   interest  aud  then  an  action  to  foreclose  as  against  the 
other  half,    thereby  occasioning  delay  and  additional  expense,   v,hich  could 
benefit  none   of  the  parties,   and   to  the  manifest  injury  of  a  part  or  all. 

The  deed  \iiich  was  e::ecuted  purported  to  convey  "all  the  rights   title, 
interest  and  estate  of  the  estate  of  Joim  H.  Ryan,  deceased,  at  the  time 
of  his  death,   and  also  all  the  rijit,   title  and  interest  vhich  the  said 
deceased  -./ould  have  had  in  said  property  had  not  the  same  been  mortgaged 
by  said  deceased."       Ths  rocoid  title  to  this  land  vra-s  in  said   Johji  H. 
Ryan,  and  he  had  tl'C  right  to  manage  and  c  cntrol  the  land  xxnder  Code 
(1881)  Sec.   2410,  v.hich  is  as  follows: 

"Sec.   2410.      The  husbard  lias  the  management  and  control  of  the  com- 
munity real  proierty,  but  ho  shall  not  sell,  convey  or  encumber  the  com- 
munity real   estate  unless   the  vdfe  join  v-dth  him  in  executing  the  deed  or 
other  instrument   of  corr/eyance  by  vJiich  the  real  estate   is  sold,  cwnveyed 


328. 

or  encunibered;   and  such  deed  or  other  instrument  of  conveyance  must  "be 
aclaiov/1  edged  by  him  and  his  w?fe:     Provided,  however.   That  all  such  com- 
munity real  estate  sliall  be  subject  to  the  liens  of  mechanic,  and  others 
for  labor  arxL  materials  furnished  in  erecting  structures  and    improverrents 
thereon  as  provided  by  law  in  other  cases,    to  liens   of   judgments  recov- 
ered for  community  debts,  and  to  sale   on  execution  issued  thereon." 

At  all  times  he  had  the  right  to  have  the  community  property  sub- 
jected to   the  payment   of  the   community  debts.     The   "estate  of   the  de- 
ceased,"  so  far  as  the  payment   of  the  debts  against  the  community  was 
involved,   vvas  the  comrunity  estate.     As  to  ho-;.?  this  debt  v.'as   originally 
contracted,    or  as  to    the  purpose  for  vhioh   it  v;as  contracted,   doss  not 
appear.     But  as  between   the  mortgagors  and  the  mortgagee  it  v/as  a  com- 
munity debt,   at   least  to  the  extent   of  having  it  paid  from  the  proc-eeds 
of  the  land  mortgaged.     So  far  the  commijnity  owed  it,  and  no  question  of 
a  suretyship  between  the  husbard  ani  vafe,    if  one  should  arise,  ccrald 
come  up  in  that  proceeding  to  prevent  the  sale  or  alter  its  effect.     !Ihe 
debt  may  in  fact  have  he  en  a  community  debt,   althoxj^  it  was  only  the 
note  of  the  husband.     The  probate  court  had  jurisdiction  of  the  estate, 
and  the  presumption  is   that  the  proceedings  were  regular,  and  that   it 
found  all  the  necessary  facts  to  sustain  its  decree.     See  Sheldon  v.  New- 
ton,   3  Ohio  St.   494;  Rorer  on  Judicial  Sales    (2d  ed.).  Sec.   314,    315; 
Thompson  v.   Tolmie,   2  Pet.   157;  Perkins  v.  Fairfield;    11  Mass.   227;   Flo- 
rentine    V.  Barton,   2  T.all.  210;  Hurley  v.  Barnard,   48  Tex.   83;    Oriol  v. 
Herndon,   38  La.  Ann.   759.     At  an  actoinistrator' s  sale  of  real  estate   the 
purchaser  buys,   and   is  entitled  to  a  conveyance  of  whatever  title  thjsre 
is   in  the  estate.     ITecbitt  v.  Richardson,    14  Te::.   656.     Here   it  was   the 
community   title,  find  the   execution  of  an  imperfect  or  insufficient  deed, 
if  the   one    in  this  case  could  be  so  held,  would  not  affect  or  deprive 
him  of  his  ri^Jit  to  the  entire  premises.     See  M  cBe  e  v.   Johnson,  45  Tex. 
634.     Code,  Sec.    1510,  directing  the  proceedings  upon  the  return  of  sale 
being  rrade,    is  as  follov/s: 

"Sec.   1510.      If  it  appear  to  the  court  that  the  sale  v/as  legally 
made  and  fairly  conducted,  and   that  the  sun  bidden  v/as  not  disproportion- 
ate to  the  value  of  the  property  sold,   or  if  disproportionate,    that  a 
greater  sun,   as  above  specified,  cannot  be   obtained,  the  court  shall  make 
an  order  confirming  the  sale,   and  directing  conveyances  to  be  executed; 
and  such  sale,  from  tj;at  time,   shall  be  confirmed  and  valid." 

The  order  of  confir nation  made  the  sale  a  settled,   confirmed  and 
valid  one.      Independent   of  the  deed,    the  proceedings   in  the  probate  court 
to  and   includii^  the  order  of  confirmation,  conferred  an  equitable  title, 
at  least,    to  the  entire  land  upon  the  defendant.     Ililler  v.  Alexander, 
8  Tex.   36;  Bartlett  v.  Cocke,   15  Tex.  471;  Dancy  v.  S  trie  Id.  Inge,    15  Tex. 
557;  Roclcv.  Heald,    27  Tex.    523;   Lalanne  v.   IJoreau,   13  La.  431;   Vincent 
v.  Huff,   4  Serg.  L  B.   298.     Und.er  the  code,   See.    83,    subdivision  3,   a  de- 
fendant   in  an   sction  at  lav;  may  avail  himself  of  both  legal  and  equitable 
defances,   and   in  tliis  case  the  proceedings  had   in  the  probate  court  as 
founS.  at  the  til  el ,   exclusive  of  the  deed,   constituted  a  defense  to   this 
action. 

Tlie  practice  heretofore  lias  been  to  administer  upon  the  entire  com- 
munity,' property   in  such  cases.      It  v/as  the   evident    intention  to  do  so  in 


y^^y 


S29. 

this  cace.     The  grantee  went   into  the  possession  of  the  entire  land  u.rier ' 
the  proceedings,  and  the  jiidcjr/;i?.t   of  the  probate  coxjrt  v;as  not  appca'.ci 
from. 


A^ 


judgment  reversed.  ^-^Ci  n'—   O. 

Anders,   C.   J.,  and  Hoyt  and  Stiles,   JJ. ,   concur. 

Duntar,  J.    (diRsenting). — I  am  unafcle  to  agree  vath  the   opintcn  of 
the  majority.     Ic  secmr  to  ixo    it   is  more  a  forcible  ar^ximent   of  ivha/t   the  " 
law  ought  to  te  tl^aii  T^njat  it  really  is.     Before  the  enaotmsr.t   of  Sr. i.   1524 
it  will  not  'bo  contended  that  tindor  such  proceeding  ar:  was  had  in  r.'i:.z 
case  the  purcha'^er  v;ould  have  taten  anything.     By  virtue   of  tliat  enact- 
ment he  ta'KES  the   ideat.'.cal   interest  rpecified  by  the  stafrate,  arrL  ric th- 
ing more,  and  no  question  of  economy  in  the  administration  of  t?ie  estate 
can  he  taken   into  conrideration  in  construing  it.      In  fact  it  seems    to  me 
that  the  provisions   of  this  statute  are  r<et  out   in  language  so  plain  and 
unambiguous   that   there  is  no  room  for   judicial  construction.     The  words 
"which  conveyance  shall  be  effectual  to  convey  to  the  purchaser  all  the 
right,   title  and   interest  ^■hich  the  deceased  would  have  had  in  the  prop- 
erty had  not   the  ssme  been  mortgaged  by  him,"  seem  to  my  mind  to  enunciate 
a  plain,   straight  forv>r?>rd  propositi  on,  vis.,    that  the  purchaser  under  the 
sale  obtains   the   interest  of  the  deceased,    and  not   the   interest  of  the  de- 
ceased end  some  body  else,  no  matter  vhether  that  some  body  else  chances 
to  be     his  partner,  his  v;ife,   or  some   other  person.     The   legislative  mind 
might  possibly  not  have  conceived  the  most  larmonious  or  best  system  of 
Settling  estates  in  the  :probate  court;   but  vhen  the   legislative  vail  is 
expressed,  in  language  plain  and  unequivocal,   no  meaning  should  be  attach- 
ed to   it  by  the  court  vhich  is  not  justified  by  the  language,  because^    in 
the  opinion  of  the  court,    it  would  maiB  a  better  law  and  relieve  litigants 
of  trouble   or  o:rpense. 

In  ansvver  to  the  complaint   of  the  respondent,   that  her  property  v;as 
sold  away  from  her  \/itliout  notice,   the  appellant  asserts,   and  the  majority 
decide,   that  because  this  was  a  proceedirg  in  ren  no  notice  except    that 
provided  by  statute  was  necessaiy,  and  that  the  court  had  jvirisdic tion  of 
all  of  the  property.     And  nany  cases  are  cited  to   show  that  ■where  courts 
have  power  to  sell  the  estate   of   intestates,   their  action  operates  on  the 
estate  and  not    on  the  heirs  of  the  estate,   and  that  the  sale   is  a  proceed- 
ing in  rem,    to  v/nich  all  claiming  um^.er  the   intestate  are  parties,  etc., 
I  raise  no  question  as  to  the  soundness  of  the  doctrine   enunciated  in  those 
cases,  but  I  insist  that  unc'.er  the  statute   the  res,   or  thing  which  the 
court  iTad  control  of.,   \vas  not  the  interest  which  the  respondent  had  in 
the  mortgaged  prenuses,  but  the   interest  vhich  the  decedent  had  in  it; 
and  under  tlie  decisions  cited  by  appellant,  doubtless  all  persons  claim- 
iHg  under  that  interest  are  parties  and  entitled  only  to   the  notice  pro- 
vided by  the  statute.     But  tte  respondent   is   not  claiming  uu^.er  such  in- 
terest; she  is  claiming  under  lier   ov/n  interest;  she  gave  a  mortgage  on 
her  interest  in  the   land  and  that  rmrtgage  has  never  been  foreclosed.      If 
it  l:!as  been  sold  at  all,    it  lias  been  sold  without  notice  to  her;   she  has 
hot  had  her  day  in  court,  jind  is,    therefore,   not  bound  by  any  action  v/ith 
reference  to  it. 

But   I  maintain  that  l:er  interest   in  the  land  never  has  been  sold,   and 


330. 

that  thero  was  no  attempt  to  sell  it  either  "by  the  probate  court  or  "bj 
the  administrator.     The  record  shoiWE  that  they  construed  the  statute  ac- 
cording to   its  plain  language  and  import.     In  the  order  of  sale    the  coiirt 
ordered  the  administrator,  upon  the  payment   of  the  money,  to  execute  a 
corareyance  to  the  purchaser  vJiich  should  convey  to  such  purchaser,  not  all 
the   interest  vhich  tlv3  mortgagors  had  in  the  property,  hut  "all  the  ri^-ht , 
title  and   interest  which  the  deceased  v,t)uld  have  had  in  said  property  had 
not  the  sane  "bGen  mortgaged  hy  him."       And,   in  accordaace  -^ith  said  order, 
the   administrator  did,    on  the   18th  day   of  September,   1880,   execute,   ac- 
knowledge and  deliver  to  said  purcliaser  a  deed  of  "all  the  right,   title, 
interest  and  estate  of  the   said  John  H.  Ryan,  deceased,   at   the  time  of 
his  death,   and  also  all  the  fight,    title   aid   interest  vhich  the  said  de- 
ceased would  have  had  in  said  property  had  not   the  same  been  mortgaged  by 
said  deceased."     I  cannot  understaad  hov;  a  deed  conveying  a  special  in- 
terest mentioned,   as  this  deed  does,  founded  on  such  an  order  of  sale  as 
this  deed  was,   and  based  on  a  statute  equally  restrictive,   can  be  con- 
strued to  convey  an  interest  v^iich  is  not  arcpressed.     The  right,    title 
and  interest  \/hich  the  decfedent   \,ould  liave  had  in  the   land,    if  he  had  not 
mortga^-ed  it,   is  corceded  to  liave  been  an  undivided  one-half   interest; 
that  undivided  one-half   interest  is  what  the   law  authorized  tJae  court  to 
order  sold.;     that  undivided  one-half  interest  is  vhat  the   court  did  order 
sold,   and  -.vhat  the  deed  shows  v/as  sold.      It  seaas    to  ne  that  the  conclu- 
sions of  lav;  as  stated  by  the  lovrer  court  flow  irresistibly  from  the  facts 
found   in  this  case,   and  that  the  judgient   should  be  affirmed. 


351, 


DENIS   WOSEIiN,   Respondent,    v.   ITAffi.'ilT  VORHIHS 
et  Al.,  Appp.llsnts. 

(14  Vvach.   152     1B96.  ) 
JMget'Tfi'^S. '""'''"  '^""''  '^^^-  County.-Hon.  Mason  Mn. 
Ihe   opinion  of  the   court  was  delivered  by 

heirs  her  hMsla^dTThV^^Tr-m.^i.       I  '  '    ^'^^las  as   Bxarvl-v^uig 

ciPal  sum  secured  by  said  mortLg.  It  ti.       ^'"'^  ''^'"""''  "^"^  *^^  ^^«- 
after  the  date  of  mltv^itv     llTi.T   if     ^*'   °^   ^^'^  ^^^  °^^*-  ^^^  ^^^^1^, 
per  cent,   per  month  from  fhe^ateo'  f     ''-T  '^''"''*  ^'  ^^^  ^^^^   ^^  ^'^''o' 
for   the  sum  of  $180     i^tead  of  si^t       Tf  *^'    "'  ^  '^^"""^^*  <^°^P^^  ^°te 
at   the   rate  of  Lne 'p^rcenMerSiL       °"''  '"'^''^^  °"  '^^  "^^^^  ^- 

the  ratt  S'^ine^per^ce^:'  trZ  '°"'^'^^'  ^  ^^°^^^^-  ^^   ^^--t  at 
represented  .y  coupon  Jo  ^s'^atta^hS'tr  !^'  '"'^^^^^  ^^^^  ^^^--^  --= 
contained  this  Provision       MThx-noLJ'         -   1^°''  ''  ^'^^  °°^^°^  ^^^^ 
P5r  month  after  maturitv '  "     t?;  ^  ^'^  ^^^^^^^^  at  two    (2)   per  cent. 

aonth  after  maturity."  ^^^erest  at  the  rate  of  one  per  cent,  per 

^vith  tt''ejp^Vsfp::;i^ons  ^f'th"  '"  ^""''^  ^^^^-^^   in  accordance 
Of   the  contract     and  fo;  1.  ^'^  ''°^^=-     ^^  ^^^  ^i^^   of  the  making 

Of  rendBri:^.  the  iTorTj  ^J  l^^  S'^^^'f^'^'  ^'  ^^^  -  -^  the  fime 
rate  <>f  interest  agreed  upon *bv^^;.\'^* "   '"^^  in  force,   viz.,   ".lay 
^B^   in  wriung,  shall  tev^liJ  LJi''     '  ^  contract,    specifying  the 
counsel  for  ^p^iiaats  ar7     .  "^•'- "  ^"^  ^^'  authorities  cited  by 

inapplicable  '  ^'^^'   ^^  ^^^^  <^-f   ^'^i^^   statutory  prevision,   wholly 

to  ---u;e'f  .s^ia^^^^rrJiisJ^tf  ^."r^  °'  ^^^  ----^  ^-^-^ 

J!^;  .^^  ^""^^  «^-J:-essly  fo^S  '  ha     at   tS  T"'  ^''^^'""'  '^  ^^^  ^^--^^- 
said  Eless  Vorhies   there  T.r)rno  fill  ^'""^    °^  ^^^  ^^^^^  ^f  the 

nor  y^Bre  there  any  ind^^iS  .ebts  e^:?!^" '  ^aid  con-^unity  Property. 
Vorhies   or  Eless  Vorhies-"  s^d   ty.1%     /■    ^  against   the  said  l^athan 
these  appellants.  '      ^     *^^  ^^""^'"^  ^'a^  «=ade  at   the  request  of 

sec.    1461.   G.n.  Stat.,   provides    that. 


"Upon  the  death  of  either  hue  band   or  v/ife,    one-half  of  the  community 
property  shall  30  to  the  curvivor,   siiiject  to    the   connunity  debts,    and 
the   other  half   chall  be  cubject  to  the    tectamentary  disposition  of  the  de- 
ceased husband   or  v.ife,   rubject  also  to   tl:ie  con]rr.unity  debts.      In  car.e  no 
testamentary  disposition  shall  ha^/e  been  made  by  the  deceased  husband  or 
vdfe  of  his  or  her  half   of   the  community  property,    it  shall  descend  equal- 
ly to  the   legi titrate  issue  of  his,  her,   or  tLdir  bodies." 

In  this  case  there  being  no  community  debjts  nor  necessity  for  admin- 
is  t-ra±i-Qn ,    ni-R-liAl  f  -OiL-the    p.OTnmijni.ty-  -^:^ftaJ-  <»R4vf»tfl -be&ime  veii^ad   ill .  tlie_SUl' - 
tiyii)-;.Jm5bsad;_Tucl:cr  v.   Brorrn,    9  Y/ach.   557    (57  Pac .  456);  Hill  v.  Ycung, 
7  V/ash.   55   (54  Pac.   144).     Kis  mortgage,   purporting  to  embrace  the  v^iole, 
■waa_v.alid_as._  to    the  undivided  one -half   interest  vhich  he  pcscecced,    and      ^^Jil 
tlao  .decree_pf_  for ec Ipsure  Mas  r es trie te.d_tJD_tliaJ:_.iiiioi-ec t .  ^ 

(5).   It  follov/s  from  vhat  has  been  said  upon  the  last  question,    that 
the  coiu't  did  not  err  in  neglecting  to  set  aside  a  homestead.     Hor  can 
the  appellants  be  heard  to  urge  that  the  rights  of  their  co-defendant 
Kame    (who  held  a  junior  mortgage  upon  a  portion  of  the  premises),  \7ere 
not   adjusted  by  the  decree.      It  is  sufficient   to  say  that  he  has  not  ap- 
pealed. 

The  decree  mil  be  affirmed. 

Hoyt,    C-    J.;   and  Anders,  Dunbar   and  Scott,    JJ.,    concur. 


333. 


n.    C.  V/.L'iiry  et  al.,  Kecpcnio-QtE,   v.  VICTCE 
ViatL'JXT  et  al.,  Appellaa'ts. 

(52  T7ash.  475     1909.  )   • 

Appeal   from  a  judgment   of  t  1t3   superior  court  for  Kin^  county,  lIorri?3.. 
J.,    entered  Dccemljer  9,    1907,   upon  findings   in  I'avor  of  the  plaintiffs, 
after  a  trial   on  tloe  poritc  before  the  court  ■  Ithout   a  jury,,    iu  an  action 
for   the  spoc-i-fTc  perf  o-irirnp  f?  t?f  n  rartynfit  t"  pqll   iFind.     ,,\,ffinjsd. 

Crov;,   J. — This  a.ctxon  ;.'as  conimcnced  by  J7-   0.  '.Viley  and  Sa'^.lJe  F. 
miey,  his  v.lie,  a:^a.vnst  Victor  Verhaest,  his  v;ife,  H.  A.  Karr:i,  E    A. 
Harris   as  adninistrator  of  the   ei^tate  of  11.   B.  Harris,  decearel,   Zera 
Harris,   a  minor,   and  Iluryl  Harris,   a  minor,    to  quiet  tdtle  and  to  enforce 
the   specific  perf o rjiarc e  of  at-coa tract  to  sell  real  estate.     On  JuZy  13, 
•  1907,   arter  the   ad^ninistrati on  proceedings  loereinaftor  of^nMcnsd,  plain- 
tiffs    entered  into  a  -.vi-itten  contract  to  sell  to  Victor  Verha^st  lot  5, 
in  block  51,   T.  Hanford's  addition  to  the  city   of  Seattle,   for  v2,475. 
Tlie  defendant  Victor. Verhaest  paid  ^50  cash  thereon,   a;3d  vath  the  consent 
of  plaintiffs  entered  into  ini:aediate  possession.     Plaintiffs  had  acquired 
title  to  one  undivided  one-half   of   the   lot  from  tha  defendant  H.  A.  Harris, 
individually,  and   the   other  undivided  one-half   from  the  defendant  K.  A. 
Harris  as  administrator  of  the  estate   of  E.  B.  Harris,   dGceai>el.     V.lien  the 
Plaintiffs   tendered  a  deed  to    the  defendant  Victor  Verhaest,   he  refused 
the   came,   claimin,^  tiaat  thfe  title  \>ras  defective,  but  retained  possession, 
and  refused  to   accept  a  return  of  the  $50  vhich  he  had  ther3tof.->re  paid. 
Thereupon  the  plaintiffs  commenced  this  action,   and   in  substcXice  allesed, 
that  on  September  26,    1906,    the  defendant  H.  A.  Harris  and   one  E.   B-  Har- 
ris \rere  husband  and  v/ife  and  ovmed  the  real   estate  as  their  conmunity 
property;   that  on  said  date  K.  B.  Harris  died  intestate,    leaving  her  hus- 
band,  the  defendant  H    A.  Harris,  and  tv/o  minor  children,    the  defendants 
Zera  and  Muryl  Harris,   as  her  only  heirs  at  law;   that  on  September  29, 
1906,  H.  A.  Harris  i^s  appointed  and  qualified  as  ae-ministrator  of  the   es- 
tate of  K.  B     Karris,  deceased:    that  he  filed  an  inventory  in  v.hich  he   in- 
cluded only  the  \,'ife's  undivided  half   of  the  let  above  described;    tliat  he 
mads  application  to  sell  the  \/ife's  undivided  half   of   the   lot,  to  pay  her 
half  of  coiTinunity  debts  and  the  costs  of   aininiEtration;    that  such  proceed- 
ings vrere  iiad  that  under  an  order  of  court  he  sold   the  wife's  undivided 
half  to  plaintiff  1.   0.   ■'iley;   tliat  the   sale  was  confirmed,    and  an  admin- 
isteator's  deed  v.qs  executed  and  delivered;   that  all   the  proceedings   in 
tlie  natter  of  the   estate  pertaining  to    the   sale  vrere  regular  and  in  ac- 
cordance with  the  statute;   tliat  the  plaintiff  IT.   C.  V/iley  purchased  from 
the  defendant  H.  :..  Harris  the  other  undivided  half   of  the   lot;   that 
tiiereafter  plaintiffs  entered  into  a  contract  v^iereby  they  agreed  to  sell 
tlie   entire  lot  to   the  defendant  Victor  Verhaest,  viio  made  a  partial  Pay- 
ment  thereon,    and  \.'ith  plaintiffs'    consent   entered  into  immediate  posses- 
sion;   that  plaintiffs  have   tendered  a  conveyance  of   the   lot   to  defendant 
Victor  Verhaest;  and   that  he  has  refused  to  complete  the  purchase,   to  re- 
ceive a  return  of  his  partial  payment,    or  to  surrender  possession,   basing 
such  refusal   upon  the  claim  that   there    is  some  irregularity   in  the  probate 
Proceedings  under  which  plaintiffs  acquired  a  portion  of  their   title. 


334. 

By  their  prayer  the  plaintiffs,    in  substance,  demand   that   each  and  all  of 
the  defend:xnts  be  rcqr.l-ed  to   cet  forth  any  claim  they  may  h?.ve   in  or  to 
the   lot;    that  the  cor.rj  ascertain  and  adj-.mgs  the  titis;    that  if  the  plais 
tiffs  hold  title,  a  ubJree  for  specific  -performance  be  entered  against  th'i 
defendants  Verhaest   and  v;ife,   and  th?.t  they  be  required  to  pay  the  agreed 
purchase  price;    that  if,    on  the  other  ha;cd,    the   judsment  of  the  court  be 
that   tha  pr.aintiffs  do  not  have   title,   a  decree  be  entered  setting  aside 
the  probate   sale,   and  directing  the  administrator   to  refund  the  sun  of 
$875  paid  by  plaintiffs  as  a  consideration  therefor. 

The  defendants  Verhaest  and  wife  by   their  answer  interposed  certain 
denials,   admitted  their  contract  to  iJurchase,   alleged  they  wore   to  make 
payment  \vhen  a  morchan table  title  v;as  given,  but    that  no  such  title  had 
been   tendered;   admitted  that    they  had  r^ade  a  pai'tial  payrent  and  entered 
into  possession,   and  admitte>'.  that   th^y  had  refused  to  coirplete  the  pur- 
chase, but  alleged  that   they  did  so  by  reason  of  the  defective  title.     For 
affirmative  defense   they  further  alloged,    that  the  plaintiffs  '..'iley  and 
wife  had  agreed  to  give   them  a  good  record  and  merchantable  title,  £s:oa  to 
furnish  an  abstract  shov.-ing  the  same;   that  they  had  furnished  an  abstract 
showing  the  title  to  be  fatlly  defective,    aid  that   they  had  refused   to 
correct   the    title,    or  make  the  same  merchantable.     By  their  prayer   they 
demand,  that  plaintiffs  be  required  to  give  them  a  good,   merchantable  title, 
and  that   in  the  event  of  their  failure  so    to  do,    they  be  ordered  to  refund 
the  partial  payment  made.     H.  A-  Kari'is,  personally  and  as  administrator, 
and  the  minor  defendants,   2era  and  Muryl  Jiarrjs,  by  their  guardian  ad  liteU', 
filed  ansv/ers   the  allegations   of  which  need  not  be  stated. 

The  trial  court  made  findings  of  fact,    in   substance,   as  follov/s: 
5:hat  on  September  26,   1906,  K.  A.  Harris  and  K.   B.  Karris,   husband  and 
v;ife,   c.-ned  the   lot  as  their  community  property;    that   on  said  date  there 
e::iEted  a  verbal  contract  betveen  them  and  the  plaintiff  N.  G.  V/iley  for 
the   sale   of   said   lot  to  plaintiffs,   for  i)lAOO;    that   on  September  26,   1906, 
K.  B.  Harris  died   intest.-.te  lac.ving  svzviving  her  K.  A*  Karris,   her  hus- 
band,  and  tv/o  raonor  children,   Zera  and  Huryl  Karris,  as  her  only  heirs  at 
law;   that  on  September  29,   1906,  K.  A.  Harris   msde  application  to  be  ap- 
pointed administrator  of  her  estate;    that  thereuxion,    the  court  having  jur- 
isdiction of   the   subject-matter,   such  i-roceedings  v/ere  had  that  he  v/as 
^uly  appointed  and  fjudlified;    that  he  filed  his    inventory,    including  there- 
in the   wife's  half  only  of   the   lot  above  described;  that  he  made  applicat- 
ion for  an  order   to  sell  the  v;ife''s  half  of    the  lot,   to  Pay  her  half  of 
the  conmunity  debts;    that  his  application  complied  v;ith  the  statutory  re- 
quirements;  that  upon  such  ap^licatior  being  presented,    the  court  made   its 
regular  order  f  i::ing   the  time  and  place  of  hearing,   djj-ecting  all  persons 
^.nterested  to  sho-v  cause  why  the  application  should  not   be  granted;   that 
said  order  to   show  cause  v/as  published  for  fctir  successive  weeks  in  a  news-* 
paper  designated  by  the  court;   that  on  the  day  of  hearing  fixed  in  the 
order,   and  before  proceeding   to   otherwise  act  upon  the  petition,    the  court 
regularly  appointed   a  guardian  ad  litem  to  represent    the  minor  defendants; 
tha. t  no  Qbfection  to   the  granting  of  the  application  \;as  made;   that   the 
court   finding  the  allegations  of    the  application   sud  petition  to  be  true, 
made  and  entered  its   order  directing   the   sale  of  the  wife's  undivided  half 
of  the  lot;    that   thereupon  the   administrator,   after  due  publication,   sold 
the   sane  to  IT.  C.  V/iley  for  ''  875;    that  the  administrator  made  rettirn  of 
the   sale;    that  the  court    (the  raonors   then  and   there  appearing  by  their 


335. 

guardian  ad.  litem)  regularly  made   its   order  confirming  the  sale,  and  dircc 
ing  the  £'lmiai.£;trator  to  ^-ci-voy  the  v/irr-   '5  un>"l iv i.dod  ho,lf  of  ihc  "Jot  to 
IT.  C.  Wiley;    t>iao  the  plaiVo.'-i.i'f  IT.    C,   V/iley    3?a.i.d   the  purchase  price;    that 
on  thie  IBtli  d^y  of  .'.yir-lr,   it-'OY,   ti-.o  adininlstj'C-tor  made   the  conveyance; 
that  all  such  prcceodi-iv'.-i  'vsre  rn9,<vcvr  zil   in  accorda-''.oe  v;ith  the  f.yl^iute; 
that  thereafter  t?:e  plii.i3;i.i::<.f f  JJ.  C.  \VJ.1oy  parc.h-a?!ed  from  the  defendant  H. 
A-  Harris  h5K  undiviCejl  h^lf   of  tha   lo-',,  receiving  a  conveyance  therefor; 
that  out  of  the  proceels  of   the  a-lmir.'.-itTac'jr  *s  sale  the   ad'ainir.tvat;r  pa3 
tlie  decedent's  orde-h.alf  of  tte  coTnmmiiy  debts;   that  cnt   of  his   cr.Ti  fundi; 
he,  paid  the   othev  half;   that  the   tlr,;e  for  the  presentation  of  claims 
against   tie   estate  Jib.":  ex£>xvirl;   that  a'll  del:ts   of  the  er>tcte  Mve  heen  paJ.ci 
that  thereafter  th»:j  plalncjff-?  entered  into  a  contract   to  sell   the  entire 
lot   to  the  defendant  Victor  \"'-^r:r.pJim;   that  ho  ^.^.-ee'l  to  pi^rcha'se   the  -.^aiae 
i'or  ^^'2,475,    then  makr-ng  a  pari  i;.i?.  vi'S^irrs^ixt  cf  $50;   that  with  plaintiff's  ci->n- 
sent  he   took  iiij.:-.ediala  posaenuior.;    w-3.v  hio   ti>r.e  for   final  payment  c:cpired 
on  Ang'.-.ct  13,   UDOy,  an.d  that  pJavutLffH  tlion  offered  tc  oonvmy,  'but  that 
ho  refuEed  to  coropiete   tho  p\irfliast»,    to  auccpt  a  refcirn  of  his  paj.- ti a. L  pay- 
ment, or  to  re-deliver  possessi5n,  has.i.ne;  such  refusal  upon  some  defect   in 
the  prohate  proceedings. 

Ifpon  these  findings  a  jndgtrent  was  entered  hy  which,  it  T7S>.s  decreed 
that  the  plaintiffs  are  the   ov,ners   in  fee  Ei;nple;    that  H.  A.  Harris,  H.  A. 
Karris  as  adi-ainistrator,  Stra  Harris,   a  minor,   and  Har;;;!  Harris,   a  minor, 
h£.ve  not,   nor  has  any  of  them,    any  interest,   clai.n,    or  title   in  or  to  the 
lot  or  any  part  thereof;   that  the   title   of  the  plaintiffs  he  quieted  as 
against    them;    that  the   contract  of  f;ale  'bet'.voen  the  plaintiffs  and  the  de- 
fendants Victor  Verhacst  and  \7ife  be  specifically  enforced;   that  the  said 
defendants  forthv/ith  pay  to  the  plaiatif  ft;  v25'?.25,   mih  interest,  and  the 
costs  of  this  action,   and  that    the  plaintiffs  forth'.7ith  convey  the   lot  to 
the  defendant  Victor  Verhaest.      Ihe  defendants  Victor  Verhaest  and  "Wife 
have  appealed,     llo  appeal  has  heon  tcCien  'oy  any  ether  pa/"ty. 

The  appellants  contend,   that  upon   tlic  death  of   one  oeohcr  of  a  com- 
munity,  the  entire  co:ijamily  property  is  .^u'jjsct   to  odministraticn;    that 
the  superior   court  has  no  t;roliatc  Jx^a-iydiction  or  po-ver  to  separately  ad- 
minister t3ic  undivided  jan.e"ha.i.f  of  the  corC'^n'mSty  property  assumed  to  have 
■belonged  to   the  decjascd,   an-1  that  the  plaintiffs   therefore  acqxiired  no 
title  under  the  atoinistrator -s  deed  for  the  deceased  v;ife's  undivided  one- 
■  lialf  of  the  lot,    or  under  the  S2parate  deed  afterr.tirds  executed  and  deliv- 
ered hy  the  hur.hand  K.  A.  Harris  for  his  undivided  ono-lvilf .      In  support 
of  their  contention  that  an  administration  upon  an  undivided  half  of  the 
communiitj-  pi-operty  only  is  '.Tithcut  jurisdiction  sid  void,   they  cite-   Ryan 
r.' Ferguson,  3  Tash.   356,   28  Pac.    9x0;  Hill  v.  Yoijrg,   7  V.'ash.  33,   34  Pac. 
144;    In  re  Kill's  Estate.    6  T7ash.  2b5,   35  Poxj.   b85;   Sadler  v.  Hiesz,    5 
T^ash.  182,   31  Pac.   630,   103C;    In  re  Cannon's  estate,   18  Tfesh.   ICi,   50  Pac. 
1021  and  other  cases  from  this  court. 

Ihere    is  no  question  hut   that,  upon  the  death,  of  one  memher  of   the 
community,    the  entire  ccrounity  properi^y  is  suhjeot  to  administration,   axd. 
that  such  complete  adminietratiou  is  the  proper  method  of  procedure.     It 
is  conceded  in  the  case  before  us,   that  only  one-half  of  the  ccmmunity 
estate  was  administered.     There  vss  no  attempt  upon  the  part  of  the   court 
to  assume   jurisdiction  for  the  purpose  of  administration  or  probate  sale, 
over  any  portion  of  the  property  other  than  the  deceased  wife's  undivided 
half.     V/o  faij,  hcjever,    to  discover  any  sotuid  reason  for  now  holding  in 


336. 

t".:ic   collateral  procesdiag   that  the  GTjpcrior  coui-t  vsle  \/ithout   juriscUc- 
tiou  ta  ac'rnir-.-i.ster  upon  ojid  sell  tjio  midiviclcd  half   of  tin   estate,    cl- 
thou^^h  its  procoediu^  muLt  to  corcGdod  to  loavc  "beai  nro^ular.     Tnora  is 
a  iTiai-Icad  diBt.inotlon  lietween  judicial  proceedia^s  that  arc  irre^'ular  or 
ervoneons,   aad    -iJ-cse  that  have   ocen  conducted  -..ithoui  jurisdiction.-     The 
r.ourc  v,-ou;.d  lU^douhrtdly  have   Eubjected  tlie   ertiro  conmunity  estate   to  its 
,i-;4riE;d:,c  ticn  and   orders  had  proper  application  tliorcfor  heen  iTiade.     Y!e 
havo  u>:;vcr  held  th„   snporior  court  to  to  -.Ithout  prohato  jurisdiction  to 
aclnini'Btor  upon  a  dec  sac;  cd  d^ousc's  half   of  comir-oiuitj''  proport;^.     Uix;;.ue3- 
tJouaTjiy  it  -.Ajidd  be  the  hcttcr  end  certainly  the  proper  practice  midor 
our  la-i7  to  ^iiTji^ct  the  entire  iutoi-cst   in  tho  com-.iunity  property  to  ad-nin- 
xFtyECTiir'a-.   tuc.   '^f.-isziie  to  do  so,  bein^-  only  an  irregularity,  does  not  de- 
prive tho  couit  of  jurisdiction  over  that  undivided  portion  U2)6n  vhich  rJ- 
tiinistration  ic  acte^ally  had.     Luch  on  acVjiuistration  bcjnc  -..'itjain  the   jut'- 
isdictlon  of  tnc  court  cannot,  viaon  once  coijiploted,   be  after'./ards  question- 
ed. 

Effi  appellar.ts  further  contend   flict  fr^  proceedings  under  v/hich  tho 
£jc'.n.i.ni3tr?.tor'&  sale  -./as  had  -..'ore  void  for  v,ant   of  proper  service  of  pro- 
cess upon  tlx!  minor  dofenc'.ejats   Cora  and  iruryl  Harris;   tliat  publication  of 
tlje   she-?;  oau^je   ordr^r  Tra.s  not  raad.e  for    Cie  entire  period   of  time  remired 
by  th3   statute   cr   fi-::3d  by  the   order  of  court;    that  yio  jurisdiction  "./as 
obtaj/oed  over  the  r'^.inors  by  the  mere  appointnioi.t  of  a  guardian  ad  litem 
\/ho  aftev./ardt  appeared  on  their  bchaT.f ;   thr.t  the  proceeds   of  the  sale   of 
the  deceased  -..Ife's  undivided  one-hailf   of  the  lot,   \;3re  improperly  applied 
in  pajinent   of  the  entire  costs   of  cdninistration  and  certain  debts ;    in- 
stead of  bein^'v  applied  to   the  payment   of  only  one -half  thereof.      On  all  of 
these  cuections  the   ti-ial  court  fomid  against  appellants'   contention,   and 
the   other  defendants  liave  not  e::cepted  to   or  questioned  such  findings. 

Appellants  strenuously  insist  that  these  findings  are  not  sustained 
bjr  the  preponderance  of   the  evidence,  but  under  the  condition  of  the  rec- 
ord nov;  before  us,  \;e  do  not  thinh  they  are  in  a  position  to  urge  such 
contention.     Tho  respondents  properly  made  H.  A-.   Harris,  K,  A    Harris  as 
acVninictrator  of  the  estate  of  I'.   B.  Harris,  deceased,   and  Zera  and  i:uryl 
Harris,   minors,    parties  defendant   in  t'.iis   action.     All  of   t3:em  Iiave  been 
legally  ano.  personally  served  -.vith  process  herein.     A  guardian  ad  litem 
•'./ho  -..as  regularly  appointed  for  the  minor  defendants,  appeared  in  this 
action,    3ns'.,-cred,   and  defended  on  their  belaalf .     aie   trial  court  has  made 
finding's   of  fact  against  each  and  all   of  these  defendants,   and  has  enter- 
ed a  decree  adjud^lns  the  plaintiffs'    title   to  be  good,   not  only  against 
H-   A,   Harris    individually  and  as  administrator  of  his  vafe's  estate,  but 
also  as  against  the  minor  heirs.     None   of  tlien  liave  appealed.     Thc-y  have 
lx?.d  their  day  in  coirt,      i7ney  are  the  only  persons  \v3io  could  possibly 
question  respondent's  title-     The  decree  is  no-./ binding  upon  them. 

The  recorc".  further  shows  that  the   appellants  ra.de  a.  partial  payment 
of  purchase  .none-'  to  the  respondents;    that  they   tooh  l:TriRdiate  possession 
of  tho  x^ropeitr/;     that  they  refused  either  to  acr.ept  p.  ret-.yn  of  the  pur- 
chase money,   or   t6  yield  their  possession  to  reso jvidcntj;    .^hat  they  liave 
continually  objected  to  the  title,   but  at  the  ssr:ie  t:rnB  de-jandftd  that  it 
be  perfected  by  the   respondents,  and   they  liave  Friied  ^.n  *:l\ri  prayer  of 
theii   ansv/er  that  the   respondents  be  rec^iired  to  give  then  a  good  and 
merchantable  title.     Under  these  conditions  v/e  fail  to  see  how  tne  respond- 


/ 


..<:^ 


337. 

ents  could  proceed  otherwise  than  "by  the  coinnencement  and  prosecution  of 
this  action.     ATrpellants,  "by  tl-eir  attitu'le,.  h?.ve  invited  the   same.     The 
decree   of   the  court  froa  vhich  the  ocher  d.8-^^r.Aantz  have  failed  to  appeal 
has  corai^letely  quieted  retvondent^'s   titi.e,   azsii  pXsxied  *;hem  in  a  prsi'rion 
to  coiiply  v,ir;h  the  demard  v/hich  the  appeliar'.ts,  wuiie  retaining  possescion, 
have  constantly  made,  and   still  make,    by  the  prayer  of   their  sns\ver  herein. 

The.  judgment   of  the  trial  court  is  right,  and  is  therefore  affirmed. 

Eudkin,  C.  J.,  I'ount,  DunToar,  and  (Jose,   JJ.,   concur. 

,.•:;.•  Fullerton,   J.,   concurs  inr'^ihe  result.  t — -  ~^   y. — ,    v-^i 

Chad\;ick,  J,    (disr.entia^r^ — I  cannot  agree  \/ith  all  th?A  is  said  in 
the  majority  opinion  of  thp  court.     To  hold  that  an- admjndntratibn  of  an 
undivided  lia^^f  of  community  property  may  "be  had  feo  the  e::clu5ion  of  the  o 
otlier  half  in  contrary  to  the   settled  law  and  the  accepted  p-cactice  in. 
this  state.       While  the  coramunity  is  perforce  dissolved  by  the  death  of 
either  sp.ouse,   the  property  remains  gn.  ontHJy  •        The  dissolution  of  the-  •■ 
community  relationship  does  not   operate  to  divide   or  partition  the  estate. 
Konce  th^' court  cannot  t  alee  jurisdiction  of  the  .undivided  half.      It  must 
taJre   jurisdiction  of  the   entire   interest  of  the  corammity .  ■.  If  it  under- 
tal:es   to  exercise  jurisdiction  over  less  than  the  whole,    its  act  should  he 
held   to 'be  void.     The  reasons  for  this  rule  are  stated  in  Eyan  v;  Fergu- 
son,  3  V/ash.  356,    28.  Pac.  ..910,'anQl.'iieed  not  be  repeated  here. 

Pur'tlier, -it  seems  to  me  that  that' part,  of  the,  foregoing  decision 
vihich;  .ass-umes  to  hold  that  the   adininistration' o-f  one-half   of  the  cora.^iun- 
ity  interest  is  a  mere "irregularity  is  entirely  unnecessary  to  sustain 
the  judgment   of  the    court,   and  may '  lead 'to'"uatold  confusion  of  titles. 
The   trial  court  fcas  a  court  of  equity  exercising  general   jurisdiction  and 
had  all  the  parties  before  it.     The  minors  ■v/ere  represented  by  a  guardian 
ad  litem.     They  v/ere  bourd  by  the   judgment  q^uieting  the  title   in  respond- 
ent.    If  our  judgment  was  based  upon  this  ground,  ho'.vever,   no  costs  should 
be  ta::ed  against  appellant,  for  tte  burden  of  furnishing  a  good  title  v.as 
upon  respondents,   and   .this.they  could  not  do   in  any  event  until  it  had     ■    . 
been  judicially  determined  that  the  heirs  of  Z.   B.  Karris  liad  T;aived  their: 
interest  in  the  property.     If  the  judgment   is   to  be  af finned  it  should  i^ot 
be  upon  the  ground  that  the  probate  proceeding  was  svi^ficient  to  conclude 
the  interest  of  tiie  heirs,  but  because  tlfe  minor  heirs,  being  in  court  by 
their  guardian  ad  litem,  had  allowed  their  day  to  pass  vdtHout  asserting 
their  interest.  '  . 

.mother  ground  upon  which  the   judgment  uf   the  trial  court  can  proper- 
ly be  affirmed  is   that  appellants- had  estopped  themselves  to  question  the 
title   offered,  as  suggested  in  the  concluding  part   of  the  majority  opin- 
ion. 

I  conctir  in  the  result     ~    - 

Parker,   J.  — I  concur   in  what  has  been  said  by  Judge  Chadwick.       . 

Morris,   J.,    took  no  part. 


338. 


SUB  et  al.  V.    EILLINGIOH.      (ITo.   12,813.) 

(Supreme  Court  of  Louisiana.     June  21,   1898.) 
(50  La.  Ann.    968) 

Appeal  fran  judicial  district  cairt,   parish  of  Avoyelles;  E.   North 
Cullom,   Jr.,  Judge. 

Accounting;  oi  lirs.  Ella  Sims,  -./ife  of  W.  H.  Jac]:son,  v/ith  Anna  Bil- 
lin^ton,  v/ife  of  Charles  L.  Younger.  From  the  judgment,  Anna  Billington 
appeals .     Reversed . 

Tliis  suit   involves  the  settlement  of  the  tutorship  of  Anna  Billing- 
ton, wife  of  Charles  L.  Younger,   ty  her  mother,  Ella  Sims,  nov;  vafe  of 
"illiam  K.   Jaclison;   the   said  Jac'.rson  acting-  as  co- tutor  vdth  his  wife. 
Incidentally  connected  -./ith   tiis  suit   is  the  settlement   of  the  community 
of  acquets  and  gains  v,hich  e::isted  betv.Ben  Ella  Sims  and  her  first  hus- 
band,  George  V.'.  Billington.     George  ",7.  B  illington  and  Ella  Sims  '.^re  mar- 
ried on  March  10,   1876.     George  Billington  died  in  April,    leaving  one  child, 
Anna  Billington,    issue   of  his   said  marriage.     The  vddow,  Ilrs.  Ella  Billing- 
ton, married  V/illiam  H.  Jackson  in  Febi-^ary,    1881.     Up  to  that  date  no 
steps  Yhatever  had  "been  talien  to-./ards  opening  the  succession  of  George 
Billington,   the  widow  having  talsn  posu-ession  of  all  the  property  without 
legal  proceedings.     On  the  28th  of  September,   1883,   she  filed  a  petition, 
in  Y/hich,   after  reciting  her  second  marriage,   and  that  she  had  thereby 
forfeited  her  right  to  the  natural  tutorship   (she  not  having,   prior   to 
said  marriage,    tal:en  legal  steps   to  retain  the  same),   phe  prayed  that  a 
family  meeting  be  convolred,   looking  to  the  appointment  of  a  tutor   to  the 
minor,  Anna.     The  meeting  was  held  under  order  of  court;,   and  recommended 
that   the  mother  be  appointed  tutrix,   and  her  husband  cu-tutor.     The  court 
so  ordered.      On  the  application  of  the  tutrix  an  inventory  was  made   in 
September,   1883,   of  the  property  belonging  to  ard  dependent  upon  the  suc- 
cession of   George  Billington  and  the  comm-onity  between  him  and  his  wife, 
Ella  Sims.     On  this  inventory  the  "home  property"  was  put  dov/n  as  being 
the  separate  property  of  George  Billington,   no  allusion  vhatever  being 
made  to   the  residence  building  upon  the  same.     The  property  vras  valued  at 
$400.     An  engine  was  also  put  upon  the   inventory  as  separate  property,  be- 
ing valued  at  ^300.     An  item  of  $523.55  was  also  placed  upon  the   inventory 
as  separate  property,   that  amount   of  separate  funds  of  the  deceased  being 
declared  to  Imve  been  received  by  the  widow  after  her  husband's  death. 
On  February  10,   1897,    the  minor.  Ella  Billington,  married  Charles  L. 
Younger.      On  the   13th  of  April  follov/ing,  I.Irs.  Younger  prayed  that  her 
mother  tod  stepfather  be  cited  and  ordered  to  file  an  account.     Before 
doing  so  the  m5ther  and  stepfather  filed  a  petition  in  vihich.  they  averred 
that  the   inventory  was   incorrect   in  some  particulars.     They  prayed  that 
a  new  inventory  be  talosn,  and   it  was  ordered,   and  a  new  inventory  was 
talcen.     On  this  inventory  fhs  engine,  \'diich  had.  figured  before  as  separate 
property,  vias  made   to  appear  as  community  property.     Tne  home  property  v;as 
still  put  do\Ti  as  separate  property,   and  valued  at  $400,  but   the  residence 
and   out -houses  upon  tliat  propertj'-  were  put  do- n  as  belonging  to  the    com- 
munity,   and  valued  at  $600.     A  certain  store  building  on  that  property, 
valued  at  $460,  which  Jacl^son  had  erected  on  the  home  place  after  his  mar- 


239. 

riago,   was  declared  to  forei  no  part  of  the  property  either  of  the  succes- 
sion of  Billinston  or  the  c orrniuni by ,   tiut  to  belo^ag  to  the  coiimunity  ■bet-.veei 
Jaclcsaa  and  his  wife.     Tlie   item  of  i^6?.Z.53  V7as  drop:i?ed  entirely  fron  the 
inventory.     Anna  Billing':cn's  rjrandmother  Rachel  Billin^ton  died,   leairing 
a  vdll,  \*.ich  lap^'ed  "by  reason  of  the  renunciation  of  all  ri:;hts   thereund.ir 
Tsy  the  universal   legatee.     A  suit  was  then  hr ought   in  hchalf   of  the  minor, 
Anna  Billington,  hy  hGr  !tiOther,   as   tutrix,   and  hor  stepfather,  as  co-tutor, 
for  the  partition  of  that  succession  hctween  joina  Billin^ton  and  her  aunt 
IJrs  .  Hardie.     A  partition  in  kind  was  ordered  to  be,   and  was,  made.     No 
mention  of  the  deqts  of  that  succession  was  cade  at  the  partition.     Tlie 
mother  and  stepfather  of  the  minor  tooli  possession  of   the  property  allotted 
to  her,   to  wit,   tv;o  traots  of  land  and  sons  movahles.     Mrs.  Ella  Sims    (wife 
of  Jac!:son)   and  Jaclsion  filed  an  account,   under  the   order  of  the   court, 
tliro-ogh  v/Mch  was  sou^it   to  "be  finally  settled  said   liquidated  all  rights 
which  the  minor  h-ad  in  ':!•£   separate  estate  of  her  father  in  the  cormtaunity 
l3et\/een  him  and  his  wife,   anl  in  the   succession  of  tl-je   grandmother  Rachel 
Billinstcn,   and  to  ascertain  and   terminate  the   respousihilitiec  of  Jachson 
and  his  wife  as  tu^ri::  and  cp- tutor  of  Ilrs.  Younger.     Ijs  .  Younger  opposed 
the  account   in  various  particulars.     She  specially  resisted  the  claim  that 
either  the  engine   referred  to,   or  the  "buildings  upon  the  home  place,  "be- 
longed to  the  community.     She   insisted  that  her  mother  and  co- tutor   should 
"be  charged  \/ith  the  value   of  the   engine   and  interest,   and  with  the  item  of 
^^523.55,   \ath  interest  thereon  from  the  date   of  her  mother's  second  mar- 
riage; that  they  should  he  charged  -with  rent  of  the  home  property  at  the 
rate  of  ^200  per  year,  and   interest  thereon,   the   rent  to  "begin  at  the  date 
of  the  second  marriage;   that  they  should  he  charged  witli  the  value   of   three 
horses  and  three  cov;e  and  calves,  with  interest  thereon.     Clie   opposed  a 
charge  brought   against  her  for  "board,   tuition,   clothing,   etc.,   at  the  rate 
of  §75  a  year  from  the  date  of  her  mother's  second  marriage,  aggregating 
$975,   and^  the  claim  made  as  for  taj:es  paid  on  the  property  belonging  to  her. 
She   opposed  all  claims  advanced  as  for  debtia  of  her  grandmother  as  havjng 
been  paid  by  her  stepfather;  also,   all  legal  costs  and  charges  and  commis- 
sions.    She  opposed  the  claim  advanced  for  premiums  of  insurance  paid  on 
the  home  residence.     The  court  disallowed  the  charge  for  O^^S' for  board, 
tuition,   etc.,  and  strucl:  off  from  the   account  an  amount  of  §655  for  which 
accountants  Inad  charged  themselves  as  for  the  rent   of  the  home  place  since 
the  date  of  tlie    seconS.  marriage;  holding  that  the  use  by  Jaclcpon  and  vafe 
of  the  part  of  the  home  p]ace   other  than  that  on  \-hich  the   store  had  been 
btiilt  was  remuneration  sufficient  for  all  clains   for  board,    tuition,   cloth- 
ing,  etc.,  but   that  rent  v;as  chargeable   for  the  use  of   the   store  site.     It 
decreed,  however,   that,    in  lieu  of  rent   for  that  portion  of  the  ground,   the 
store  building  itself,  ^*lich  was  valued  at  $4.50,  should  l:e  rade  to  belong 
to  Llrs.   Younger.      It  decreed  that  the   tutrix  should  be  allowed,   as  a  charge 
against  the  minor     one-half   the  value  of  the  residence  placed  on  the  prop- 
erty of   3eorge  Billington,   and  tliat  an  additional   item  oi  $500  be  cliarged 
on  the  final  account  against  the  minor.     It  decreed  that  the   item  a:?P^^.r- 
ing  on  the  original  inventory,    of  $523.55,  and  charged  against  the   tutri::, 
could  not  be  considered  a  legal  charge  against  the   tutriy;   it  being  cocmun- 
ity  property,   and  the  same  heaving  been  expended  for  ccrr/avnity  debts  amount- 
ing to  $360  by  the   tutrix,   and  the  remairder  used  for  the  support  of  the 
widow  and  minor  prior  to  her  marriage  with  Jacltson.     It  further  decreed 
that  the  $300  vhich  figured  on  the  account  as  the  price  of  an  engine  which 
the  widow  had  sold  were  community  funds,   and   should  be  divided  equally  bs- 
tvreen  llrs.   Younger  and  Ilrs.   Jac!ison;    the  court  finding  that  the  engine  had 


S40. 

"belonged  to  the  coiiamunity.      It  decreed  the  homolo:,'ati on  of  the  account  as 
EO  amended  "by  it,   decroeiun;  the  costs   to  to  paid  lay  the   sixjcession-     Ac- 
countants filed  in  court  a  conditional  acceptance  and  acquiescence  in  the 
jud^.TOeiDit ,    "in  so  far  as   the   decree  accorded  the   store  "building  of  \7.  K. 
Jackson,  valued  at  v'3--60,   to   opponent  in  lieu  of  rent";    tlie  condition  af- 
fi:ced  Tseins  that  the   judgpient  as  rendered  shouM  he  accepted  "by  Mrs. 
Younger,    or  affirmed  on  aropeal^   the  huilding  to  he  talten  as  a  suhstitute 
for  rent.      In  case  of  reversal  of   the   judgment,   they  reserved  all  rights 
to  urge  ovuership  of   the   store.     Mrs.    Charles  L.  Younger  appealed.     Appel- 
lees answered  the   appeal,   praying'  "that  the   judgment   of  the  lov/er  court, 
disallowing  ite;n  2  of  tl-e  final  account     aiaounting  to  $975,  for  e::penses 
of  minor,  and  tlie   item  of  $460,   value  of  the   store  "building,    separate 
property  of  17-  H.   Jaclison,   co-tutor,   v;herein  the   said  huilding  was  decreed 
to  the  minor   opponent  in  lieu  of  rent,   be  amended  hy  allov/ing  the   said 
itei-as  as  charged  on  said  final  account,   and,   thus   a-aended,  said  judgment 
he  affirmed  in  all  other  particulars." 

V/illiam  Kail  and  Joffrion  u  Joffrion,   for  appellant.     J,   C,   Cappel, 
for  appellee. 

Hicholls,   G.   J.    (after  stating  the  facts).     An  examination  of  the 
evidence  in  the  case  satisfies  us  that  the  engine  v/hose  price,  after  heing 
sold  hy  Llrsc  Billington,   was  placed  on  the   first  inventory  tal:en,   as  an 
asset  of  the   separate  estajre  of  her  huslaand  CJoorge  Billington,   was  prop- 
erly placed  there.     There   is  some  conflict  of   testimony  as  to  the  date  of 
its  pin-chase,  but  v/e  think  it  v.-as  bought  in  1875,   prior  to  Billington' s 
marriage.       Tlie  entry  on  the  inventory  remained  unquestioned  as  to   its 
correctness  up  to  the  time   that  the  minor  called  for  an  account,   and  dur- 
ing the  intervenirfe-  period   tte  relatives  of  the  minor  specially  faniliar 
with  the  facts  of  the  case  liave  died^     Jackson  and  his  wife  v;ere  both 
present  -when  the   eatiy  \/as  made,   an^.  raised  no  objection  when  natters  '.vere 
fresh,  and  disputed  claims  -.leve  susceptible  of  easy  proof.     The  court  err- 
ed in  decreeing  the  engine   to  have  been  community  property,  and  the  price 
thereof   (OSOO)   to  be  comiaunity  funds,   belonging  one-half   to  the  opponent, 
and  the  other  half   to  her  motl-jer.     The  engine   vra-s  tlie   separate  property 
of  George  Billington,   and   the  entire  price  of  $500  belonged  to   opponent, 
and  tutrii:  and  lier  husband  W    H.  Jackson  are  chargeable  with,  and  must  ac- 
count for,   said  amount   in  solido. 

Y/e  are  of  the  opinion,   und-er  the  testimony,   as  matters  stand,   that 
the  residence  building'  upon  v/hat  is  referred  to  herein  tliroughout  as  the 
'■"Home  Place,"  v;as  erected  upon  it  by  Billington  in  1878,   after  his  mar- 
riage.    There  is  considerable  doubt  as   to  whether  the    lianber  out  of  which 
it  was  constructed,    or  a  portion  tliereof ,  did  not  belong  to  him  prior   to 
his  narriage.     Ilrs.   Billington  testifies  that  tloe  funds  v/ich  \*iich  payment 
was  made  v.Bre  sums  received  by  her  husband  for  work  done  by  him  as  a  me- 
chanic after  his  i-narriage .     Tliere  was  no  attempt  made  to  contradict  that 
statement,  and   legal  presumption  supports   it.     Succession  of  Boyer,   36  La. 
Ann.   508.     Tliere  are  several  reported  cases   in  our  decisions  \here  the 
court  has  felt   itself   justified  in  inferring  that  improvements  put  up  by 
a  husband  on  his  separate  property  during  marriage,    or  paid  for  during 
marriage,  and   individual   or   separate  de^ts  paid   for  during  marriage,  v/ere 
paid  tlTTOugh  funds  belonging  to  his   separate  estate;   but  the  facts  of  cases 
of  that  cloaracter  must  be  exceptional,    to  authorize  us  to  act  on  such  an 


341. 

assumption.     An  interval  elapced  "between  Billington's  marriage  and  the 
erection  of  the  house,    lon^  enou^i  to  liave  enabled  h\n  to  realize  eu:. :•'.•- 
oient  money  during  the  period  to  liave  met  the  pj^rncntc  called  for;    aud 
his  meg,nc  hefore  marriase  were  not  shown  to  have  been  so   large  as  to  al- 
raOGt  uececcarily  load  uc   to   impute   their  uue:rplained  disappearance   to 
outlays  made  for   the  building.     It  is  possible  that  the  whole  sum  of 
$1,150.10,  proceeds  of  bridge,   paid  at  different   intei-vals   between  Hay  19, 
1876,   and  January  10,    1G80,  toay  have  arisen  frcm  a  debt  due    to  Billington 
before  his  marriage;   but  no  evidence  v/as  introduced  to   show  the  character 
of  tbe  contract  under  which  they  were  paid,   nor  the  time   it   -.vas  entered 
into.      Of   the  anount  stated,  ^^718  were  received  by  Billington  himself 
after  his  marriage,   and   the  balance  by  his  v/idov;.     The  facts   of  the  case 
should  h-ive  been  shown.     Comparison  of   the  facts  of   this  case  with  tho.-.e 
of  Succession  of  IlcCleiland,   M  La.  Aim.   763,   and  Succession  of  Boyer,   56 
la.  Ann.   509,  v;ill  show  the  clear  distinction  between  them,  luider  the  evi- 
dence found  in  the  record. 

Buildings  and   improvements  placed  by  the  husband  on  his  separate 
property  during  marriage,  oinid  paid  for  with  community  funds,  do  not  be- 
come   the  property  of  the  community.     Tliey  belong  to  the  husband.     But 
payments  so  made  give  rise  to  a  charge  in  favor  of  the  community  against 
his   separate  estate.     This  claim  is  neither  for  the  cost   of  the   improve- 
ments, nor   is   it  for  the  value   of  the  buildicgs.      In  Ouccession  of  Koth, 
33  La.  ijin.    541,   af  finning  llercier  v.  Canonge ,   12  Rob.   385,   v/e  said  that 
it  was  well  settled  tha,t  the  recompense  due   to  the  comm\mity  is  the  en- 
hanced value  resulting  to   the   separate  property  from  the  estate  at  the 
date  of  the  dissolution  of  the  community,   and  that  the  result  v;as  reached 
by  making  an  average  of  the  valuations  placed  by  all  the   several  vri.tncss- 
es   on  the  store,    and  land  and  store   together,   and  on  tine   land   or  store 
alone.     See,   also,   on  this  siibject,  Dillon  v.  Dillon,    35  La.   Ann.   95. 
The  law  governing  the  case   is  announced  in  article  2408  of  the  Revised 
Civil  Code;   as  follows:      "V.hen  the  separate  property  of  the  husband  or  ■ 
the  wife  has  been  increased  or   improved  during  the  narriage   the   other 
spouse   or  his   or  her  heirs  slrnll  be   entitled,   to  the  rev;ard  of   one  half   of 
the  value   of  the  increase   or  amelioration  if   it  be  proved  that  the  value 
or   ameliorations  be   the  result   of  the  common  labor,   e:rp eases   or  industry, 
but   there  shall  be  no  rev/ard  due  if  it  be  found  that  the   increase  is  due 
only  to  the   ordinary  course  of  things,    to  the  rise   in  the  value   of  prop- 
erty or   the  chances   of  trade." 

\7e  tmderstand   that  portion  of   the   judgment,  v/xiich  decrees   "that  an 
additional  item  of  three  hundred  dollars  be  charged  on  said  final  account 
against  said  minor,"   to  f  i::  0300  as  being  the  amount  chargeable   against 
the  minor  for  and   on  account   of  the   increased  value   of   the  home  property 
on  account   of  the  building  placed  thereon,    and  appellees   to  accuiesce   in 
the   judgment   to  that   effect;  but  appellant,  having  ta'.ren  the  grouoi  that 
the  "building  was   separate  property,  paid  for  out  of  separate  funds,  Iv^n 
not   informed  us   w]-£ther,    assuming  that  lier  position  be  not  accepted,  acid 
that  she  be  chargeable  -./ith  any  poa-tion  of  the  price  of  the  imprbve'Ltnts, 
the   amount  fi::ed  by  the  court  would  bo  satisfactorjr  to  Iier   or  not.     "'p 
therefore  fi::  the    anount,   as  ^/e  understand   it  to  have  been  fi:ied  by  this 
lower  court,    at  $300. 

Accountants  are  entitled  to  repajTnent  for  tases  paid   on  the  properl'y 


342. 

■belongins  to  the  succession  of  Billiu^'ton  after  Ilrs.  Billinston's  second 
marriage,   tnt  the  evidence  in  the  record  on  that  subject  is  not  clear  -■-id 
at  all  catiGfactory  to  us.     The  ta::  liillr  are  mad'^  out  mostly  in  the  irjae 
of  OaclcEon,  and  the  ta::es  upon  the  different  properties  are  so  rr-erged  to- 
gether tod  confused  that  we  are  unable  with  pn^ciaion  to  fix  how  much  vas 
due  by  the  succession.     Accountants  c;hould,  iDofore  malting  out  their  ac- 
count, have  separated  the   taices  so  as  to  show  beyond  question  what  partic- 
ular portions  of  the   ta::es  were  due  upon  the  property  of    tiie  succession, 
and  by  proper  evidence  shown  the  correctness  of  the  separation  as  rrade. 
V/e  cannot  be  e:rpected  to  make  calculations  and  detail  v/orl:  of   tiiat  char- 
acter.    The   itans  of  teases  must  be  held  not  proved,   ard  the  judgnent  sus- 
taining thera  reversed,  and  the  matter  is   left  open  for  future  examination 
and  decision. 

The   legal  charges  and  costs  and  attorney's  fees   incurred  by  account- 
ant  in  the  matter  of  the  succession  of   Gecrge  Billington  cliould  be  divided 
betvreen  the  minor  and   siccountant  equitably,   according  to  the  extent  of   the 
Interests  of  the  respective  parties,   as  announced  in  Succession  of  Webre, 
49  La.  Ann.   1491,   22  South.   390,   as  the  settlement   of  the  husband's  suc- 
cession carries  vith  it  the   settlement   of  the  community   in  vhich  account- 
ant Ilrs.   Jackson  is  interested;   anj?^  cost  incurred  for  the  special  benefit 
of  one   or  the   other   of  the  parties  to  be  charged  to  that  particular  party. 
The  costs  and   attorney's  fees  incurred  in  the  matter  of  the   succession  of 
Rachel  Billington  should  have  been  paid  equally  by  Ilrs.  Hardie  and  the 
minor,  Tlnna  Billington.     The   jiaigment   cliould  be,  and  it   is  hereby,   reopen- 
ed on  the  subject  of  costs  and  attorney's  fees   in  both  successions,    to  be 
talffin  up  and  disposed  of  de  novo  in  the  district  court.     The   tutor   is  en- 
titled to   10  Iter  cent,  commissions  on  the  amount   of  the  revenues  of  the 
minor,  not  upon  the  amount  of   the  property  or   of  the  property  and  the  rev- 
enues.    A  comparison  \-ath  the  revenues   as  shovm  by  the  account  when  homol- 
ogated will  fix  the  amount  of  the  commissions.     Under  no  circumstances 
could  the  expenses  of  ttie  minor  for  board,  clothing,   tuition,  etc.,   exceed 
her  revenues   (Rev.  Civ.  Code,   art.   350),   so   as   to   leave  a  debt  hanging 
over  the  minor  at  the  termination  of  the  tutorship,  which,   being  enforce- 
able, would,    if  she  v/ere  not  prepared  to  pay  it;    in  all  probability  sac- 
rifice her  property  and  ruin  her.     The  lawnalter  contemplates  that  expenses 
of  this  character  should  either  be  met  as  they  spring  up  by  talcing  from 
the  minor's  revenues  or  from  his  capital,   by  authorization  of  a  ifiamily 
meeting,   under  article  350,  Rev.   Civ.  CodO;    or  that  they  be  not  permitted 
to   spring  up  at  all-     The  minor's   "revenues,"  under  this  rule,  must  be 
taJcen  to  be  x-fhat  remains  each  year  after  the  payment   of  taxes   of  that 
year.     Accountants  have  cliarged  the  minor  mth  $975  on  this   score.     Tlie 
evidence  shows  that  all  the  parties  are   in  very  moderate  circumstances, — 
the  stepfather  Seeping  a  small  country  store,  built  by  him  upon  a  10-acre 
tract  of   land  belonging  to  the  minor;    and  he  and  his  \afe    (opponent's 
mother),    their  four  children,   and   opponent  herself,   all  lived  together  in 
the  residence  built  upon  the  place  during  tloe   first  marriage.      Opponent 
is  Ehovm  to  have  very  s el don  loft  her  home,  and   it   is  fair  to  presume  that 
her  v.'aats  were  Email,   as  were  the   eirpenses   incurred  on  her  account.     Liv- 
ing as  an  inmate   of  h^r   own  home,   vath  her  mother,   stepfather,    and  her 
half  brothers  and  sisters,  younger  than  herself,    she  Mac  very  naturally 
called  upon  to  perfoim,   and  the   testimony  Ehov;s  that  she  did  perform,   serv- 
ices of  variovTE  lands,  such  as  a  frraily  so  circumstanced  would  be  likely 
to  need  from  a  momber  of  the  family.     T7ith  that  factor  present,    it   is  e::- 


34-3. 

ceedingly  diffictilt  to  sau^e   the  propai-  e::tent   of   any  clain  to  bo  ■b:xT:'-'':t 
against  hor  by  her  parent n.     Eie  difricu?.ty  in  the  case  is   in'^reat.1-?--.   \;    ■ 
there  beins  a  conflict  in  the   testimony  as   to  the   ft-stent  and  coiit-itii-,::<:j 
of  the  cervices  re-xlered  by  opponent.     Ceveral  decisions  have  hcid    that 
no  charge  whatever  should  be  made  against  the  child,   as  between  her  par- 
ents and  herself.      It   is   intimated  that  a  stepfather,    standing  in  lieu  of 
a  parent,   should  govern  himself,   and  be  governed,   by  tte  same  rule.  Cuc- 
cesEiou  of  Bojrer,    06  La.   /jan.   511;  Succession  of  G-rosc,   23  La.  Ann.  106; 
V/allcer  v.  Barro-.?,  4S  La.  Ann .   857,    9  South     4-79;  Succession  of  3utton,   20 
La.  Ann.   151.     One  brother,   even,  '..ho  has  boarded  and  given  tuition  to 
another  brother,   is   supposed  to  have  done   so  from  feelings  of  natural  af- 
fection,  in  the   absence  of  special  circumstances  calculated  or  going  to 
shov;  the  contrary-     Verret  v.  Belanger,   6  La.  Ann.   109.     Accountants  have 
made  an  "estimate"   of   what  they  consider  proper  to  be  charged  to   the  minor, 
but  have  not  given  the  data  upon  vMch  tliat  estimate  is  based.     T.hat  have 
been  the  revenues  of  the  minor?     The  only  amount  -..hich  had  tdien  definite 
shape  up  to  the  time   that  the   judgment  of  the  district  coui't  v/as  rendered 
was  the  amount  received  by  accountants  from  rent  received  from  the  prop- 
erty vhich  fell  to   the  minor  in  the  partition  of  the  Reichel  Billington 
estate.     The  only  other  source  of  revenue   is   the' rent  of  the  home  place, 
the  e;:tent   of  vvhich  rent  is   one   of    the  natters  in  litigation  in  this   suit- 
On  the  account  filed  June  21,   1897,   accoxmtaats  charge  themselves  v/ith 
$455  as  rent   for  that  property  since   1883,   or  less   than  $35  a  year.     2he 
court  substantially  fi::ed  it  at  about  ^?920,   or   about  C}75  a  j^ar;  compen- 
satirg  all  of  tl^at  rmount   for  board,   etc.,   e:xept   the  sum  of  §460.     This 
would  fi::  the  e:3>euEes   of  the  minor  at  about  ^30  per  year  for  the   corres- 
ponding time.     V/e  thinl:  tliat  a  reasonable  rate,   if  that  amount  should  be 
found  to   fall  vathia  the  minor's  revenues,     "'e  thinli.  hov.Bver,    that  the 
rent  of  tlie  home  property  is   filled  at   too  low  a  rate.      It  consisted  of  10 
acres  of  land,   upon  part  of  which  Jacl^s  oi,   after  his  marriage,  constructed 
a  store,    v/hich  l:ie  has  used  ever  since,    a  fair  dv>-elling  (with  four  rooms 
and  a  hall  down,   and  t\X)  rooms  up,   stairs),   a  couple   of  sta'^les,   and  out- 
buildings.    V/e  think  the  rent  of  property  of  that  character  in  the  country 
should  certainly  be  worth  at  least  $150  a  year. 

Opponent   complains  that  accountants   should  liave  been  permitted  to 
have  brought  into  their   account,   and  l:iavG  considered  by  the  court,   any 
matters  connected  v/ith  the   succession  of  Rachel  Billington,    in  \,fliich  she 
accuired  an  interest  during  the   tutorship  as  heir  of  her  grandmother.     The 
minor  being  under  tutorship  v,hen  that  succession  opened,   the   tutors  of  the 
minor,   finding  a  vd.ll  of  the  deceased  in  existence-,   detrimental  to  oppon- 
ent's interests,  came   to  an  amicable   settlement  with  her  aunt   (her  gTand- 
mother's  legatee),   by  which  the  latter  renounced  all  advantages  under  the 
will,  and  consented  to  talce  the  succession  -..ith  the  minor,   share  and  share 
alike,   and   to  have  the   sarne  partitioned.     Opponent  brought  suit  for  that 
purpose,   and  the  property  of  the  succession  v/as  divided  in  kind,     riie  tu- 
tors,  as   such,   took  possession  for  the  minor   of  the  property  so  allotted 
to  her,   and  irrere  boucd  to  account  to  her  for- it  at  the   termination  of  the 
tutorship.     They  placed  the  same   on  their  accounts,   and  ujidertooi:  to  ac- 
coimt  for  their  administration  of    it  vhile   tutors;  charging  themselves 
v/ith  certain  revenues,    and  crediting  themselves  vath  various  amounts, 
"hether  their  account   in  respect   to  these  ra-tters  be  correct  or  not   is  a 
different  matter  from  their  rigjit   to  present   their  gestion  as  to  this  par- 
ticular property  as  a  part  of  their  genai-al  account  as  tutors.     V/e  think 


344. 

they  had  the  ri^'ht  to  so  present   them  subject  to   contest. 

Opponent  complains   that  the  tutors  should  have  paid  any  portion  of 
the  dehts  left  by  Bachel  Eillingtou.     v/e  see  no  ground  for  complaint,    if 
the  debts  were  duo,   and  the  tutors  paid  for  the  minor  no  more  than  v;hat 
was  really  her  share   of   the  debts.     Article   1371,  Rev.    Civ.    Code,   declares 
that  in  a  partition  no  partition  is  made  of   the  passive  debts  of   the   suc- 
cession;  that  each  heir  remains  bound  for  the  share  he   takes  in  the   suc- 
cession.    The  debts  of  the   succession  of  P.achel  Billi3:iG"ton  -were  small,    in 
respect   to  the  value    of  the  property'  received  by  the  heirs. 

Opponent  claims   that  the  tutors  paid  a  larger  proportion  of  those 
debts  than  the  minor  was   liable  for;    that   thejf  paid  in  eitirety  some  debts, 
instead  of  paying  thjs  minor's  virile   share.     There  seems  to  be  come  ground 
for  tliat  complaint.     Some  of  the   ta::es  paid   seem  to  have  covered  property 
othijr  than  that  recc;ived  by  the  minor,  and   the  mortgase  note  paid  by  the 
tutors  seems   to  haye  beai  Paid  in  full,   instead  of  by  contribution.     As 
this  case  will  have  to   go  back,   v.e  think  it  best  to  reopen  the  matters 
connected  with  the   settlement  of    the  r;achel  Billingtou  succession,    and 
leave  them  open  for  future  e::araination  and  decision. 

Opponent  complains  that  accountants  shpuld  have  been  permitted  to 
establish  by  testimony  the   anount  that  r^rs.  Billington  had  during  her  v/id- 
owhocd  paid  out  for  debts  of  the  community,   and  for  the  support  of   oppo- 
nent and  herself,  —  the  0^25  v3iich  appeared  on  the   first  inventory, — as 
they  did  not  place  the   aaounts   so  er^pended  on  the  account,   so  as  to  notify 
her  of  professed  proof  on  the  subject.     She  insi£|;s,   hov/ever,    that  this 
amount  of  $523  was  correctly  admitted  in  the  first  inventory  to  belong 
to  the   separate  estate  of  her  father.     The  amount   in  question  seems  to 
have  been  received  by  Ilrs.    Billingtdn,   after  her  vadoviiood,   from  Ilr.   Har- 
die,   as  part  of  the  "net  proceeds  of  the  bridge."     They  are  that  part  of 
the  proceeds  of  the   bridge  v.^iich  v.ere  turned  over  after  Billington's 
death  to  his  v.ldow,    the   other  part  ]aaving  been  received  by  himself  during 
hie   lifetime.     The  fund  was  that  which  we  have  already  referred  to  as  hav- 
ing to  be  talcen  as  a  community  fund,    in  the  absence  of  evidence  to  the 
contrsjry.     Y/e  must  so  consider  the  pa:rt  which  was  turned  over  to  ra-s.  Bil- 
lington.     Y/e   think  the   amount  v/as  erroneously  placed  on  the   first  inven- 
tory to  the  credit   of  the  husband's   separate  estate.     T/e  think     that  the 
matter  of  the  e:cpenditure  of  this  amount  should  be  reopened,   and  left 
open  for  future  e::amination.and  adjustment.     Opponent  vsas  not  notified 
that  it  would  be  the  subject-matter  of  litigation. 

Tlae  court  erred   in  decreeing   that   the   store  building  erected  upon 
the  home  place  by  XL  H.   Jackson  should  be  talcen  by  opponent    in  place  of 
rent.     The  ownership  of  the  building  v;as  in  Jackson.     Ke  could  not  be 
made   to  lose,    or   opponent  be  mac'e  to  accuire,    the   ownership  of   the   same, 
vathout  their   respective  consents.      If  rent  should  be  found  to  be  due   by 
accountants,    it  will  have   to  be  paid   by  them,  unless  compensated  in  some 
legal  vay. 

V/e  think  the  charge  made  for  repayment   of   insurance  premiums  paid  on 
the  residence  building  on  the  home  place  a  proper  one. 

Accountants  should  be  charged  for  all  movables  converted  by  them. 


345. 

wjtji  le^al  interest  from  date  of  conversion. 

V/e  think  the  "best  method  of  disposing  of  this  case   is  to  reverse   the 
judgment   of  the   district  court,   and  to  remand  the  cguse   to  the  district 
court,   vath  instructions   to  Ella  Sims,  v/ife  of  XI.  H.  Jackson,   and  y.   H. 
Jackson,    to  file  a  full  and  final  account   of   their   aximini  strati  on  as  tutri 
and  CO- tutor  of  Anna  Billington,  mfe  of  Charles  L.  Yovinger,    in  conformity 
with  the  views  herein  expressed;   and  it    is  hereby  so  ordered,   adjudged, 
and  decreed.     Costs  of   appeal  to  be  paid  by  appellees. 

On  Application  for  Rehearing. 

(June  30,   1898.) 

Breaus,  J.— Plaintiffs  and  appellees  in  their  application  for  a -re- 
hearing set  forth   that  this  court  erred  in  allowing  in  favor  of  the  minor, 
against  the   tutor,  $2,250  as  rent   of  the  home  place,   in  the  succession  of 
George  Billington, — being  $150  per  annum  for  the  number  of  years  stated, — 
and   in  allowing  against  the  minor  only  $450  for  ST;s?port  and  care  for  the 
same  period  as  just  stated.     As  to  the  foimer    (the  .';-;2,250),   v/e  yield  as- 
sent  to  plaintiffs'    representation  to   tliis  e;;tent  only.     '7e  rescind  that 
part  of   our  decree  heretofore  rendered  allowiQ£-  the  anount  of  $2,250,  as 
just  stated.     Having  rescinded  that  part  of   our  judgment,  we   leave  the 
question  open  for  future  adjustment.     All  rights  of  the  parties  as   to  that 
amount  are  reserved.     Evidence  of  plaintiffs  and  evidence  for  defendant 
may  be  heard  as  relates  to   the  amount  which  should  be  allowed  as  rental 
for  the  place   identified  as  *'Home  Place,"  occupied  as  shown  by  the   evi- 
dence.    .Ifter  the  evidence  vvlll  have  been  heard,    the  matter  v;ill  be  fix^d 
by  judgment,   and  the  plaintiffs  and   appellees  will  be  charged  up  mth  this 
rental  the  sum  which  may  be  found  due.     V/e  desire  to  have  it  vrell  under- 
stood, upon  this  point,    that  it   is   left   to  future  adjudication,    and  that 
it   is   the  only  point   in  regard  to  \^aich  vre  make  a  cliange  on  this  spplica- 
ti  on  f 0  r  a  rehearing . 

The  next  grotind  of  objection   (numbered  2  in  the   application  for  a 
rehearing)   is   that  an  error  vas  committed  in  our  decision,    in  decreeing 
that  the  engine  and  boiler,  valued  at  $300,   are  the  separate  property  of 
the  minor.     "Je  have  given  further  consideration  to  the  facts  bearing  upon 
this  point.     T/'e  are  firmly  convinced  that  as  to  this   item  our  decision  is 
absolutely  correct.     It  must,   in  consequence,   in  this  respect,   remain  un- 
changed . 

The  Ee::t  ground   of  applicants  for  a  rehearing  is  numbered  3,  and  sets 
forth  that  our  holding  that  the   tutor  had  paid  more  than  the  minor's  share 
of  the  debts  of  the  succession  of  Rachel  Billington  was  error.     This  was 
only  left  open  for  future  hearing  and  determination,   so  that  complainants 
have  on  that  score  no  cause  to  find  fault,    as  the  question  is   left  open, 
a^d   ip  not  affected  adversely  by  our  decree. 

The  next  ground   of  the  application  (nvmibered  4)  asserts  that  there  v;a£ 
error  on  our  part  in  our  having  decided  that  the   tutor  had  not  sho\7n,   suf- 
ficiently exact,   the  amount  of   taxes  paid  for  the  minor.     \7e   thought,   and 
still  think,   that  an  account  should  be  made  out   of   these  taxes,    showing 
amount   of   taxes  paid  for   the  minor,  and  that  it  should  have  the  support  of 


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346. 

cufficicnt  evic.ancG  to  renf.er  it  entirely  certain  thct  tlie   tozicz  cloarsed 
'./ere  paid  for  the  minor 

Fifth,   our  reopening  t'le   quostion,    aixL  permittinG  evidence  as   to  item 
of  $523.53;    is  conplained  of  137  appellees .        It   is   asserted  that   the  vri-dov/ 
expended  this    sum  for  debtc  and  s-^ipport  of  liercelf  and  minor  prior    to  her 
second  n:)arria^G .     '.Ve  rci^anded  tho   case,   ac  relates  to  the  question  here, 
on  the  groxind  that  further  evidence  chould  Tdo  intra-.iced  in  cup^^ort  of   the 
claim,      "e  do  not  thin:  that  as  to  tiis   item  v/e  should  rescind  our  judg- 
ment.    A  minor  is  concerned.     Ue  thinh  fvcrther  evidence  can  \Tell  "be   offer- 
ed in  cupport  of  this  claim. 

Lastly,   as  relates   to  the  costs   of   appeal  a  question  is  also  raised. 
Uhere  a  judgment  is   reversed,   as   in  this  case,   they  are  due  hy  appellee. 
ITothius  talces  the  case   out   of   the  ordinary  rule. 

After  having  rescinded  our  decree  only  as  relates  to  the  item  of  rent- 
al  ($2,250)   as  above  set  forth,   v.e  refuse  the  application  for  a  rehearing. 
The  amendment  v;e  l^ave  made  could,    in  our  view,   te  rrade  on  the  application 
for  a  reloearing,,   and  vathout  ^'^anting  a  rehearing. 


347. 


V;OLP  et  al.  v.   GiEBBOHS. 

(Court   of  Civil  Appeals  of  Texas.     June  4,   1902.) 
(69  S.  V/.  Reportor,   238) 

Appeal  from  district  court,  Lau  Sata  county;  II.  D.  £lator.   Judge. 

Action  by -Chc-rlec  v/olf  and  others  against  V/.  H.  Gibbons.     From  a  ^ 
ju§gmoat_fiir__de£endant  for  a  portion  of  the  lands   in  contfroversy,  plaintiff 
appeal.     Affirmed 

Fisher,   C.   J.     This   is  an  action  of  trespass  to  try  title  by  Charles   ' 
'Volf,  .'jnelia  P.  V/ithro,/,    and  Carrie  Chev;  a^i^iiist  V.'.  H.   Gibbons,   for  th« 
recovery  of  246  acres  of  land  in  San  Saba  county,   located  in  the  name  of 
Frederick  Loci-:   (certificate  Eo.  434,   abstract  Ho.  841,    survey  No.   150). 
Defendant  answered  by  general  denial,   plea  of  not  guilty,    statute  of  10 
years'    limitation,  and  cross  bill  alleging  that  he  was  tlio  legal  and  equit- 
able ovner   of  the  land  tued  for.     Tne  case  \/aG   tried  before  the  court,  and 
judgment  rendered  for  Carrie  Che\/  for  one-eighth  of  the  remaining  eastern 
portion  of  167  acv.iss,  and,    ac   to   seven-eighths  of  this    167  acres,    judgment 
was  rendered  for  defendant  against  >7olf  and  T'ithrow  undor  the  plea  of  10 
years'    limitation.     The  judgment  of  the  court  contains  this  recital:    "And 
the  court,  liaving  heard  and  considered  all  the  pleadings  and  evidence  and 
argument  of  counsel,  finds  and  concludes   that  plaintiffs  have  shown  and 
established  a  chain  of  title  to   the  land  in  controversy  from  the  sovereignt" 
of  tl::e  soil  dov/n  to  and  in  themselves,    but   that  the  defendant  has  acquired  a 
part  of  said  land,  as  hereinafter  described,   by  virtue  of  the  statute  of  te:i 
years'    limitation."     Tlie   judgrcent   then  proceeds  to  decree   to   the  defendant 
certain  describea  lands,.     There  is  evidence   in  the   record  which  sup:^-orts  bo*: 
facts  thus    stated  as  found  in  the  judgment  of  the   trial  court;    that   is,    tha^: 
the  plaintiffs  have  the  superior  title,   and  that  the  defendant  has  limitat- 
ion,  under   Gie  10  year  statute,    to  the    land  described  in  the  judgment   of 
the  court. 

In  disposing  of  %'lTat  appal lants   term  a  "fundaiTiental   error,"  v.e  are  of 
the   Oj..dnion  that  the  plea  of   liriitstion  %vas  sufficient   to  authorize  the 
ju^g-ment  of  the  court.      Cur  findings  of  fact  dispose  of  appellants'   first 
assignment  of  error.     The  evidence  was  sufficient  to  show  a  continuous  and 
e::clu£ive  adverse  poscesLion  in  appellee,    so  as  to  i-rotect  hia  under  the 
•10-year  statute  of  limitation. 

We  do  not   think  that   the  appellee's  first  cross  assignment  of  error 
is  v/ell  taten.     The  follov/ing  ststement    is  taken  from  the  statement  of 
facts:      "Deed  by  Ilaria  Lock,    surviving  wife  of  Frederick  Lock,   deceased, 
to  H.  F.  Fisher,  da  tec    arx'   duly  acloiowledged  in  Karris  county,    Te:;a£,  Ilarch 
5th,   1853,  conveying  survey  no.   150,   district  Ho.   2,    in  Fishor  i  I!illei's 
colony,   and  £t<:te  of   To::^::,  by  virtuo  of  he;-.clright  certificate  for  640 
acres   issued  to  Frederick  Lock  by  coiTinissioner  of  Fisher  <i  Ililler's  colony 
in  1850.     Said  deed  recites  that  said  survey  contains  320  acres  of  land, 
and   tha.t   it  is   one-lialf  of  said  640-acre   sui-vey."     In  view  of .  this   st-te- 
ment  from   the  facts,   it  is   not  necessr.ry  for  us   to  consider  tlie  oBjections 


348. 


raised,  to  th3   transcript  of  the  probate  recordc  of  Harris  coxmty  in  the 
estate  of  Frederick  I,o©ck  or  Look,   dcdeased.      It   ai^^Pears  from   the  state- 
ment made  from  the   facts  ^.uat  Llaria  LocV:,    tlie   survivirg  TO.fe  of  Fredericlc 
Lock,  conveyed  the  3ar.d    i"i.  1655  to  H.  P.  Fisher.     'Ve  construe  this   state- 
ment to  mean  that,  as  a  fact,  Maria  Lock  v/as   the   surviving  v/ife  of  Fri^d- 
erick  Lock,   deceased,   and   that   she,  at   the  time   ststec",  conveyed    the  xstA 
to  H.  P.   Fisher.     l:he  convej'ance  was  e:cec\ited  in  1855,    ard,   of  course,  v;as 
over  30  years  of   age  at  the  time  it  was  offered   in  evidence  upon  the  tr:.al 
of  this   case.     Uothlng  to  the  contrary  appearing,   the  presumption  ir>    tliat 
the  land  in  question  v/as  of  the   community  estate  of  Llaria  Lock, and  her  de- 
ceased hushard ,  Froderick  Lock.      It  was  patented  to  Frederic'-:  Lock  August 
28,   1857.     The  heacright  certificate  by  virtue  of  -hich  it  v/as  locatea,   of 
course,   was  acquired  prior   to   t'lis  time.      The  surviving  wLfe  ha,ving  sold  th' 
land,    the  presumption  \all  be   indulj^ed,    in  viBT/  of  the  antiquity  of  her  con- 
veyance,   that   the    salo  was  made  for    the  purpose  of  satisfying  cornmunity  deb'. ■ 
Hencol  v.  Kegans,    79  Te::.  547,    15  S.  \7.   275;  Auerbach  v.  V/ylie,    84  Te.:.   619, 
620,    19  S.   r.    856,    20   C.    ' '.    776. 

The  ruliij^  that  vc  have  jus't  made  also  disposes  of  appellee's  second 
cross  asEignment   of  error.     If  the    sale  "as  made  for    the  pr<rpoce  of  dis- 
charging community  debts,    it  would  conclude  the   right  of-  the  minor  child 
of  Llaria  arid  Frederick  Look. 

We  cannot  agree  v.lth  appellee  in  the  right   asserted  in  his    third  croc:^ 
assignment  of  error.     We  are  of    tht;  opinion  that   the  survey  number  was  a 
necessary  part  of   tlie  description  of  the   land   in  question,   and  that  de- 
scribing the  survey  as  Fo.   150  v/as  fatal  to  the  ia;c-Guit  proceedings  under 
which  the  land  -,7as  ordered   to  be   sold.     Brokel  v.  IIcKechnie,    69  Te:c.   33, 
6   B '   V/.    623  • 

V/e  find  no  error   in  the  record,  and  the  judgment   is  affirmed.  Affirmed 


^^;p^i-<;.^-^^ 


^,^,^.^^/^^^i^U^  _        :;i/ti^ 


^ 


349. 


ER}iI;ZIlICK  V,  BUCHH0I2,   Appellant,  v.    CeLIK 
v;.  BUCIEOLS  et  al.,  Respondents. 

(63  V/ash.   213,    1911) 

Appeal  from  a  Judgrtcnt  of  the  superior  court  for  Stevens  county,   Carey 
J.,   entered  February  21,   1910,   upon  findings   in  favor   of    the  defendants, _ 
after  a  trial  on  tha  merits  before  the  court' -.athout  a  jury,  vacating   the 
appointment  of  an  administrator  and  dismissing     proceedings  jnTtiie  matter 
of  an  estate.     Affirmed. 

Gose,   J. — The  appellant  and  his  deceased  -.'ife,  Justina,  were  married 
in  1867,    in  the  state  of  ilinnesota.     They  raovec'    to  Spo'.rane,    in  this    st-te, 
in  1887.      The  v/ife  died  at  the   latter  place  on  Octo-oer  15,   1908.     From  1887 
until  her  death,  her   actual  residence  had  been  at  all   times  in  the  city  of 
Spokane  and  its  immediate  vicinity  in  Spol:ane  county.     She  had  at  no  time 
teen  in  Stevens  count}/.     Aoout  Rovemter,    1898,    f.ie  appellrJit,   a  cler^-^TOon, 
ijas  appointed  to  a  cn^r^'e  erahracing  Stevens  county  and  a.  small  part  of 
Spol^iane  county.     Ke  continued  in  that  dist-ict  for  about   si;:  3''ears,   after 
v/hicli  his  -mrlz  embraced  Stevens  county  only.     Since  1906  he  has  not  been 
engaged  in  ininiste-ial  -/or!:.     Since  1898  his  domicile  has  been  in  Stevens 
county  first,    an?,  until  about  1905,   at  a  place  called  Addy,  anf.  thereafter 
at  hie  farm  at  Evans.     The  deceased  left  four  children,   t\/o  sons  and  t\;o 
daughters,   the  3'O-angect  daughter  being  about  thirty  years  of  age  at  tha  ti.iie 
of  her  death.     She  also  left   surviving  hei'   a  grandchild,  aged  about  thirteen 
years,   the  child  of  a  deceased  son.     On  ITovorabcr  50,   1908,   upon  the  petition 
of  appellant,   an  order  "/as  entered  in  the  superior  court  of  Stevens  count:/ 
appointing  him  administrator  of  the  estate  of  his  v;ife.     Tlie  petition  al- 
leged,   and   the  order  recited,   that  the  deceased  t/as  a  resident  of  Spolcane 
county  at  the  time  of  her  death.     Oa  the  25th  day  of  October,   1909,   the  aP!- 
pellant  applied  for  and  -'as  granted  leave  to  file  an  amended  petitioii  for 
lettei's  of  ad.mnistration.     In  the  ajnended  petition  he  alleged  that  the  de- 
ceased   /as  a  recident  of  Stevens  county  at   the  time  of  her  dec;th.     In  re- 
spon&'3  to  his  citation,    the  sons  and  daughters  ans"./ered,  denying  tlaat  their 
mother  -./as  a,t  any  time  a  recident  of  Stevens  county,    s^.  averred  that   she 
vac  a  resident  of  Spol:a.ne  county  at    tlie  time  of  hei-  death.     Upon  the  issue 
thus  joined,  the  case  \;as   tried  to  the  court.     The  court  found  "that  at  the 
ti..e  of   taae  daatL  of   tlie   said  Justina  Buchholz  she  v/as  a  retidont  of,    and 
had  her  place  of  abode  in,   Spoh-ane  county,    state  of  '"'ashington,   and  \7as  not 
at  said  time  a  resident  of  Stevens  county."     As  a  conclusion  of  lav/  the  ■ 
coui't  found,   "tlaat    the  court  is  \/ithout  jurisdiction  ixi  tie  premises,   and 
that   thic  action  b©  dismis'^ed."     A  decree  '..•rs  thereupon  entered  v^cctiiig 
the  former  order  ind  dis.iissing'   Sie  amended  ^'otition.     Tliis  appeal  followed. 

Our  St;  tut e,  Eem.  o;  Bal.  Code,   Sec.  1284,    subd.   1,  provides  that     'ills 
clia.ll  be  proved,  and  letters  tectamentaiy  or  of  administration  shall  be 
granted,   first,   "r^  the  county  i:i  v/'iich  tlie  deceases  v/as  a  recident  or  had 
his  place  of  abode  at  the  time  of  his  death."     The  appellaoit  contends  that 
the     ord  "ro&idenco,"  as  used  in  tlie   statuto  quoted,  means  a  legrl  residence 
or  domicile.     It  is  not  claimed  tliat  the  deceased  Iiad  her  abode  in  Stevens 
county  at   Kie   time  of  her  death,     ■".■e   tliinlc  this   court  has  in  efiect  so  con- 


350. 

strued  the  statute.  State  ex  rel.  Bald\/in  v.  Superior  Court,  11  V/ash. 
Ill,  39  Pac.  818.  Ilowover,  v/e  have  no  doutt  that  the  v.ord  "residence" 
is  here  used  iu  its   strict  le^al  sense. 

Ihe  appellant  ne:;t  contends   that  the  domicile  of    the  wife  until  di- 
vorced follov.'s   that   of   the  hushand,   for  the  purpose  of  administration. 
Respondents  insiat  that,   under  the  provisions  of  Rem.  &  Bal.  Code,   Se« 
5926: 

"All  lav/s  ".vhich  impose  or  recognize  civil  disahilities  upon  a  wife, 
which  are  not   inposoo.  or  recognized  as  existing  as   to  the  hushand,  care 
herelDy  abolished,   and  for  any  unjust  usurpation  of  her  natural  or  property 
rights  ste  shall  have  the   same  right   to  appeal  in  her  o\m  inclivid;:ial  name 
to  the  courts  of  lav/  or  ec^uity  for  redress  and  protection  that  the  husbrnd 
has:     Provided  alv/ays.   That  nothing   in  this   chapter  shall  be  construed  to 
confer  upon  the  v'ife  aiiy  right   to  vote  or  hold  office,  e:;cept  as  othervdse 
provided  by  law;" 

the  right  of  the  wife  to  establish  a  ddmcile  for  herself,  wherever  and 
whenever  she  chooses,   \.ithout  regarc-   to  the  domicile  of  the  husband,  can- 
not be  questioned. 

Ue  cannot  thinJ^  that  the  statute  last  quoted  should  receive  so  broad 
a  construction.     Its  setting  in  the  original  act  shov/s,  v/e  thinlc,   that  the 
legislature  did  not  have   such  intention.     Xjav/s  1879,  pp.   77  to  62;    Id.,  p. 
151;   Code  1881,  Sections  2396  to  2418.     The  v/hole  scope  of  the  act   shov/s 
conclusively,  v/e  thinlc,   that  the  lavmalcing  body  intended  to  confer  upon 
the  vi/ife  the  right   to  acc^uire  and  hold  property,   to  sue,  and  to  be  sued, 
to  contract,   etc.;   and  to  give  her  equal  rights  v/ith  the  husband  in  the 
custody  of  the  children.     To  tliis   e::tont  her  legal  entity  ard  identity 
■i/ere  established.     It  seems  cert<iin  that    thi;  legislature  did  not    intend  to 
dissolve  or  destroy  the  unity  of  the  rjari  iage  relation.     Later  legislation 
touching  the  a^rriage  relation  inf-icatec  the  correctness  of  this  viev, 
notably  the  statute.  Rem.  i.  Bal.  Code,  Sec.  2444,   vhich  malces   it  a  crime 
for  the  husband  to  valfuUy  neglect  to  sup.-ort  hie   .dfe.     nor  can  we  agree 
v/ith  the  appellant's  vie-./  of  the  la-'.     V.'e  accept  his  statement  of  the   lav; 
that,   goneially  speclcing,    it   is  the  privelega  of  the  husbsnd   to  fix  the 
family  donicile.     His  duty  to  maintain  And  support  the  family  and  his   right 
to  establish  the  dOiiiicile  are  correlative. 

Afurther  statement  of  the  facts  is  ssceatial   to  a  proper  understand- 
ing of  the  case.     '2h.e  appellant  testifia.  that,  although  he  Icne  /  his  wife 
\;as  ill,  ho  did  not  visit  or  see  her  for  some  nine  or  ten  months  preceding 
her  death.     I\70  or  three  days  before  her  death  she   reruestec.  iier  children 
not  to  notify  tVsixr  father  of  her  decease,  assigning  as  a  reason  that  he 
had  not  carer",  for  her  --Inle  she  ";.';s  aliva.     Ee  was  not  notified  of  her 
death,  and   .as  not  present  at  her  burial.     Cne  of  the  sons  testified  tl^t 
the  father  said  to  hio,   in  spealring-  of  the  deceased,   that  "he  was  not 
going  to  have  anytlung  more  to  do  -dth  hor."     This  \;q.s  five  or  si:c  years 
preceding  her  decease.     Ee  rrade  a  li":e   stateixont   to   aaotl-ijr  son  two  or 
three  years  later.     Tlie  appellant's  conduct  from  1898  to  the  date  of  the 
death  of  his  v/ife  confirms  the  truth  of  this  testimony.     His  \/ords  do   not 
square  v/ith  his  conduct.     On  December  15,   1905,  he  leased  his   home  in 
Stevens  county  and  the  .ground  u:^.:'Ou  '^hich  it  was  situated,   for  a  term  of 


351. 

five  years   to  a  widow,  v.^om  he  married  about  six  months  after  the  death 
of  the  deceased.     The  consideration  for  the  lease  was  that  the  lessee 
should  furnish  the  lessor  v.lth  "hoarding  and  lodging."     The  appellant 
testified  that  the  lessee   owned  the  housohold  goods  in  Stevens  county. 
The  appellant,    from  Decem'ber,   1905,  was  only  a  hoarder  in  his   ov.-n  home. 
The  record  speal^s  but  one  language,   aiX;  that   is  that  he  did  not  desire 
or  intend  that  his  vafe  should   share  his  domicile  in  Stevens  county. 
This   inference  is  too  strong  to  he  overcome  by  his  declarations  to   the 
contrary.     By  his  ovm  wilful  neglect  of  his  marital  duties,   speaking  of 
his  conduct  in  the  nost  chajritahlo  li3;ht,   as  we  view  it  from  the  record, 
he  destroyed  the  home  sdA  the  marriage  entity.     There  was  nothing  left 
hut  the  mere  shell  of  the  marriage  relation. 

V/here   the  husbanc:.  has  deserted    ^e  v/ifo,    or  TJhore  there  has  been  a 
mutual  abandonment  of  the  marriage  relation  so  that  every  purpose  of  mcir- 
riage  is  destroyed,   the  reason  for  the  rule   that   the  husband  can  fix  the 
family  domicile  ceases,   and  the  rule  ceases,    end  the  v;ife  is  then  at   lib- 
erty  to  establish  a  separate  domicile  for  all  purposes.       Gordon  v.  Yost, 
140  Fed.   79;   Tovai  of  '.Vatortown  v.   Greaves,   112  Fed.   183;   Shute  v.  Sargent, 
57  U.  H.   305,    36  Atl.   262;    In  re  Plorance's  Will,    7  H.   Y.  Supp.   578,    84: 
Am,  St.  pp.  33,   34,  note  8.     In  the  Gordon  case   it  w^s  held  that,    .here 
the  husband  has  deserted  the  wife,   she  may  be  a  resident  acd  citizen  oT   a 
different  state  fro.-n  her  husband,   for  the  purpose  of  prosecuting  a  suit   in 
a  Federal  court  to  recover  for  the  alienation  of  his   affections  and  caus- 
ing his  desertion.     In  the  Town  of  V/aterto'm  case  an  imdivorced  married 
woman  iTas  permitted  to  sue   in  z.  Federal  court,   in  an  action  of  tort,    for 
the  recovery  of  damages  for  injuries  caused  by  a  defective  sidewalS:.     The 
contention  that  she  could  only  establish  a  c;uasi  domicile  apart  from  the 
domicile  of  her  husband,  for  the  purposes  of  divorce,  "./ac=  rejected.     In 
considering  the  limitations  of  the  rule  that  the  domicile  of  the  v;ife  fol- 
lov/s  that  of  the  husb  nd,   the  court  said: 

"I  f  the  hucbc.nd  abandons  their  domicile  and  his  v-'ife,  and  relinqui- 
shes altogether  his  marital  control   and  protection,  he  yields  up  that  pov/- 
er  and  authority  over  her  which  alone  malce  his  domicile  hers." 

In  the  Shute  cuce   the   .;ife  teas  an  actual  resident  of  the  state  of 
He'.'  HarapsMre  at  the  dat§  of  her  death.     The  husband  retained  a  do..:icile   \ 
in  Lias  sac  husetts,   but  had  abandoned  his  vdfe  before  she  left  that  ^t^:te. 
It  v/as  held  that   the  wife  vjas  domiciled  in  IIe\/  Hampshire  at  the  time  of 
her  death.     The  court   said  that,   in  view  of  modern  legislation,   "no  reason 
would  seem  to  remain  why  she  may  not  acquire  a  separj;te  domicile  for  every 
purpose  Imovaa  to   the  la./."     In  re  Florance's  V/ill,  supra,   it  is  said: 

"If  she  v;as  enough  of  a  resident   to  institute  divorce  proceedings, 
aS  is  conceded,    she   ic  enough  of  a  resident  to  leave  her  property  to  her 
children,    snd  to  be  protected   f*om  the  claim  of  a  husband  mth  r;hom  she  ; 
had.  not  live.',  for  12  years." 

Th.^  word^  "domicile,"  as   opplief-  to  the  marrigge  relation,  means  a 
hojiie^vhere  the  husbiiad  a^nd  wiTiT  di/jtll— to,',iit]Ti?ir"tTr"aa*4;?^-    .h.ilst  \7e~tiiin^: 
that   the  husband,  not!  thstanding  the  liberal  provisions  of  our  statute, 
has  the   right,    under  normal  conditions,    to  fi::  the  famly  domicile,    there 
is  no  sound  principle  of  lav;  ■..•hich  forbids  the     ife,  \.'hen  the  essence  of 


352. 


the  marriage  relation  has  been,  destroyed,   from  estaldishirig  a  separate 
domicile  for   every  purpose.      Kiose  views  are  supported   in  principle  by 
McCain  v.   Gibbons,    7  Wash.  314,   35  i-ac.   64,    and  Kimble  v.  Kimble,   17  V/ash. 
75,  49  Pac.   216. 


The  judgment  is  affirmed. 


\— 


O^ 


K 


Dunbar,   C.   J.,  Fuller  ton,  Pari:er,   snd  Mount,   JJ.,   conDmT. 


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352. 


BI\BM:  S.  SCOTT  e::  AL..,  .appellants,   V.  EDVr~D  ST.\P.X  et  al., 
Eospoudsnts,  S:il,\  v:.v:.£OiT  et  al.,  Defondtnts, 

(75  \'Is.sTi.   61C,1013) 


Appeal  from  a  judgment  of  tlie  c-aperior  c  curt  for  Kitsap  county, 
Yalcey,   J.,   entered  November  6,   1912,  _d.ifiJDii5j5ing  an  action_in_eject/ten.t , 
Qii-S.u£tiiiniu^  a  demurrer  to   the  coic(i?l£.int.     Affirmed. 

Crow,   e.  J. — .ippollants  brousht  l-.hi.ti  action  to   recover  an  undivided 
throe-sevenths  interest    in  certain  lauds  in  Zitsap  county  v/hich  they  allege 
\/ac   the  sopai-ate  property  of   their  ancestor,   John  U.  ferlans.     John  E.  Per- 
kins died  in  Kitsap  county  on  June  10^   1Q05,   leaving  him  surviving-,  Elise 
Perkins,  his   vido-./,  vho  v.-c:s  sppointed  aininistratrix  of  the   estate.     The 
material  facts  relied  on  are  as  follov/s: 

"That  previous  to  thu  death  of  tii3  said  John  N.  Perkins,  deceased,  a 
v^ritteu  agreernent  v/as  entered  into  by  and  'bet/een  tho  said  John  IT.  Perkins, 
deceased,  and  his  -wife,  Slise  A.  Perlcins,  to   the  effect  tliafe  upon  the 
death  of  either  of   them  the   survivor   should  not  receive  ar^  rJight,   title 
or  interest  v^iatsoever  in  any  of   the  separate  property  of  the  other  spouse. 

"That  on  or  aTDout  the  8th  day  of  Septemljer,   1905,  the  said  Slise  A. 
Per'.ans  caused  an   invantorj'  to  "be  made  of  the   said  real  estate  and  caused 
the  saae  to  "be  appraised  at  $900;   that   said  appr.;.iS3ment  -.vas  made  frcud- 
ulently  laxl   for  the  purpose  of  defraudin,^:  ^^-e  plaintiffs  ard   a  part  of  tte 
defendants  herein;   and  thet  O^OO  given  as   the  value  of  the  said  land  in 
said  inventory  -jcs  far  less  than  its  real  valuation  at  said  time,   and  that 
the  said  property  at   the  said  time  mslS.  worth  more  than  vl»500, 

"!Ihat  on  or  about  the   23rd  day  q£   September,   1905,   the  said  Elise  A. 
Perkins  filed  in  said  court  a  petition  asking  that  the  real  estate  herein- 
before dsECribet.  be  set  aside   to  her  as  her  soile  and  separate  property  on 
the  around  th:  t  the  same  v.^as  v/orth  less  than  Ol,000  and  on  the  further 
^Tound  that  she  d.esirec.  to  claim  the   same  as  a  statutory  homestead;   that 
the  said  Slsie  .'..  Perkins  loiev;  then  that  tiio  said  property  \:at   the   separate 
property  of  the  said  decedent,  but  claimed  the   same  as  community  property 
of  the  said  decedent,   aoi    in  her  petition  stated  that  slie  had  an  interest 
therein,  bj  virtue  of  its  "bein:;  coiji.iuaity  property  and  claimed  the   same  as 
a  horaostea:'-  by  reason  of  its  strtue  as  such, 

"That  thereafter,   on  or     ':)0ut  the   28th  d?y  of  October,   1903,   an  order 
settiJS  aside  said  property  to  said  Llise  A.  Per'rinc  v/as  entered  in  said 
court,  a  co_y  of    liich  is  hereto  anne::ed  and  raat.e  a  part  of  this  complaint 
marked  Exhibit  A. 

"That  Jolui  n.  lerkins*  deceased,  did  not,  previous  to  the  time  of  his 
death,  file  any  declar:;tion  of  homestead  in  thJ  office  of  the   county 
auditor  of  rits-a.-'  i.i  relation  to   tlie  real  estate  liereinbefore  described 
and  tliat  the  said  31ise  A.  lerlans  never  at   sny  time  either  before  or  after 
the  death  of  t2t.e  said  John  II.  Perkins,  deceased,  filed  any  such  declara- 
tion,   of  hoiaectead. 


354. 

"Tliat  by  reason  of  the  facts  hereinbefore  alleged  the  said  Spperior 
Court  of  Kitse.;'  ccunty  v/as  v/ithout  jurisdiction  to  icalce  the  order  herein- 
before set  forth    ?.ud  .^-Isaced,  and  that  said  order  is  void  and  ineffective 
for  any  purpose  v/hatsoevor-" 

Prom  a  judgnaent  sustaining  a  demurrer  to  the  complaint,  plaintiffs 
have  appealed.     The  denurror  was  properly  sustained.     Contracts  of    the 
kind  alleged  to  liave  b3<='n  reade  v/ill  be  strictly  scrutinized  by  the  coiirts. 
Tlie  statute.  Rem.  «  Bal.  Code,  Sec.   1464    (B.C.  409  Sed.  523),    is  analogous 
to  statutes  provic'dng  for  homesteads  in  property  of  deceased  persons.     Such 
contracts  are  not  f?.vorec..     If  th^  are  mado  before  marriage,   it  has  been 
held  that  the3r  are  void  because  there  \/as  nothing  upon  •■/hich.  the  contract 
could  operate  either  as  a  release  or  a  discharge.     Ilann  v.  LIann*s  Estate, 
53  Vt.  48.     \7nile  this  ground  nay  be  cuestioned,    the  courts  so  far  as  thay 
have  passed  on  this  subject,   seem  to  be  agreod  that   the  setting  aside  of 
homostoads,   e::cmptions  aM  similar  allov/aaces,   is   a  matter  of  public  con- 
cern.    Jjuch  statutes  are  passed  to  prevent  dependency.     Thoj  are  humane 
lff.;s  and  voice  a  souud  public  policy,  arxL 

"There  are  grave  reasons  .hy  a  lav.  enacted  fron  public  considoiations 
should  not  be  abrogated  by  mere  private- agreement,  and  that  it  ould  be  in 
contravention  of  the  policj''  of  the  law  to  permit  a  man,  by  an  ante-nuptial 
agreeioent,  to  relieve  his  estate  from  the  operation  of  ftie  statute  provid- 
ing that  an  allovance  should  be  nede  for  the  maintenance  of  his  v/idov/  aid 
minor  children  for  a  limited  period,  and  upon  this  reasoning  -..-e  held  that 
an  ente-nu.tial  agrooment  -.vas  inoperative  as  to  the  '.7ido\/'s  ?>.ard."  Zach- 
maun  v.  Zaclimann,   201  111.  380,   66  K.  L.   256,   94  .im.  St.  180. 

"Komestoad  is   a  right   secured  by  statute  to  every  householder  h.^viog' 
a  f-.iinily,  cjnd  by  a  recent   statute  it  is  an  estate  in  the   lot  or  land  ov/n- 
ed  or  occupied  by  such  party.     It  is  continued,  after   the  death  of  such 
householder,  f  cr  the  benefit  of    tho  husb  nd  or  v;ife  surviving,    so  long  as 
he  or  she  continues  to  occupy  such  hamestead,  and  of  the  children  until  the 
youngest  child  becomes  fw'enty-one  years  of  age.     The  e::emption  is  absolute, 
e,:cept  it   is   alienated  in  the  mode  prescribed  in  the   statute,   ;nd  no  re- 
lease of  homestead  is  valid  unless  by  the  parties   intended  to  be  benefited, 
in  coufoimity  -.ath  the  la-w  that  confers  pov.'er  to  alienate   it  at  all.     The 
policy  of   the  la.-  is,  aa   this  court  has  had  frequent  occasion  to  declare, 
to  preserve  the  homestead  for  the  benefit  of  the  family,  as  veil  as  the 
householder  himself.     The  statute  was  no  doubt  enacted  fror.i  motives  of  pub- 
lic concern,  anc  it  is  apprehended  it   is  not  ±n  the  po.'er  of  i^hs   fathor  and 
motiior,  by  an  3nte-nu:,.tii.l  agreement,   to  so  provide  as  to  deprive   their 
minor  children  of  its  benefits  in  case  of  their  death.     McGee  v.  McGee,   91 
111.   549. 

See,   also,  .-chillos  v.  Achilles,   137  111.   589,   28  H.  E.  45;  ihelps  v. 
ihelpL,    72  111  545,   22  .Im.  Rep.   149. 

In  Hann's  Estate,   supra,  it  is  said: 

'•neither  can  lier  covensnt  not  to  claim  homestead,, operate  as  an  estop- 
pel on  her  tight  of  homestead.      Tlie  plant  iff  is  claiming  the  homestead, 
-.vhich  tlie  statute  vests  in  her,     Ker  covenant  not  to  do  so  is  er.ecutory. 
-■.  party  ca-inot  bo  restrjinec,  by  v;ay  of  estoppel,    from  asserting  a  statu- 
tory rijit,  because  it   is   in  violation  of   zn  e:cecutory  covenant,     neither 


355. 

CCA  such  a  covenant  "be  sit  up,  and  given  oper-i.t iou  by  '.'ay  of  rebutter,   to 
bar   the  assertion  of  the  homesteau  right  of  tlie  "^^laintiff.     Gibcon  v.  Gib- 
son et  al.,   15  IlacG.   106;  rullin.jS  v.   Hicliraond  et  al.,   5  Allen   187." 

This    ic   tlic  rule   ^avei-nin^'  an  ante-nuptial  contract.     If   the  contract 
was  mado  after-  rfarriaj'o  the  vadov;  hac:  an  interest  in  the  jroijerty,    either 
an  absolute  fee,   if   it  mcs  coranunity  property,   or  a  c^ualified  estate  or 
rijht  of  occupancy  for  a  limited   time,    if  it  was  seijarate  property  that 
could  pats   onljr  by  deed  ercecutcd  -.vith  the   formolities  required  by  statute. 
Rem.  6  Bal.  Code,  Sections  8745,   874-6    (P.O.  143  Sections  1,   3);  Ilcllaliill 
V.  McIIahill,   105  111   596,   -1-4  Jjn.  Rep.   819. 

In  principle,   our  reaconins  is  sustained  by  reference  to  our  decisions 
Holding  that    the  v/aivcr  by  a  debtor  in  the  instrument   croatin;:'  the  debt  of 
his  ric;ht  of  redcuiption  is  contrary  to  public  policy.     Dennis  v.  I'.osos,    18 
V.'ash.   557,    52  lac.   51  j,    1-0  L.   R.  A.   502. 

The  vitality  of   Rem  i:  Bal.   Code,  Sec.   U64    (P.  C.  409  £oc.   325),  pro- 
vidin^,•  for    the  j^ettin^-  aside  of  estates  of   less  than  vl.OOO  has,   in  vie^7 
of  the  homestead   la  •  of   1895,  Ia-..'S   of  1895,  p.   109    (Rem  &,  Bal.   Code,  Sec. 
528  et  seq.;  P.  C.   225  £ec.   1),   been  doubted  by  many  careful  and  learned. 
members  of   the  bar,    aid  has  been  mooted  in  at  least   one  case  decided  by 
this  court,   Ete-..ln  v.   Tlirift,   30  'Vash.   56,   70  Pac.   116.     The   statute  has 
never  been  repealed,  unlesc  by  implication.     A  recort  to  the  rules  ^overn- 
ins  repeals  by  implication,  and  the  ixany  decisions  of   our  court  that  cmh 
repeals   are  not   favored,    aid    that  la\.T    '111  not  be  held  to  b-j  repea.led  by 
a  later  act  unlets  tlu   repusnancy  is   so  plain  that  an  intent   to  cover  tlic 
whole  subject-matter  of  the   later  act  can  be  attributed  to  the  lesislature. 
",7e  have  e::aniued  Sec.   1464   and    the  act  of  1895  \.'ith  this    thought    in  viev/, 
and  have  d.ecided.  that   they  are  not  repugnant  one  to  the  other.     The  act  of 
1895,   in  so   far  ac   it  deals  vdth  the  right    to  select  a  homestead  af ter  cthe 
death  of  a  spouse,   refjrc  to  real  property  only,  whereas.   Sec.  1464   is    in- 
tended  to   include  the  whole  estate.     Lection  1404   seemc    to  have  been  in- 
tended to  apply  only  in  cases  where  it  appears  that  there  is   no  property 
of  sufficient  value  to  satisfy  the   limitations  of  the  homestead  and   ei:- 
ea^Jjion  rights.     ..t  tho  ti;io  the  statute  v;at  enacted  and  amended,  ihe  value 
of   the  homestead  allov/ed  under  the  se^ei'al  lav/s  was   fixed  at  ClfOOO.  Be- 
sides the  policy  v/hich  prouipts  the   public  to  provid.a  for  the  care  of  the 
dependent  \/ido"..'  cjid  children,  there   is   another  policy  appsTeut   in  the 
statute;   that  is,  to  clear  the  records   of   small  estates  when  no  purpose 
•w-ould  be  sei-ved  by  cn-adiMinistration.     It  is    said   that    the   estcte  shall  be 
set  a^ide  "and  there  shall  be  no  f^irther  proceedings  in  tie  administration 
unless  further  estate  l^o  discovered."     ;.lthou:;^i  doubted  by  counsel,   ^q 
cato  In  re  ITeff's  Estate,   159  C  al.   71,    72  lac.   652,    seems  to  be  in  :,oint. 
It  ic   tliere  said: 

"In  the  case  at  bar,  the  court,   in  malzins  the  order  appealed  frcm, 
v/ac  not   cottin,];  aside  a  homestead,   nor  d-ealin^  \.'ith  the   subject  of  homea^ 
steads.     It   was  a  proceedinG'  under  sectioni.1469,  •..'hich  specifically  deals 
with  the   special  subject  of  est; tes   less  in  value   than  01,5000,   and  pro- 
vides  that  the  -whole  of  such  en  estate  shall  go  to   the  -.ido-..',    subject  to 
existing  lions  and  encumbrances.     Hie  claim  to  the  land  in  question  vhich 
these  appellcats  set  up  ic    not  a  claim  to  a'lien  or  encumbrances';    it  is 
a  claia  of  o-.nershi.^j  or  title.     Talcing  all  the  code  sections   together,   and 
considering  the  regard  -.hich  tlie   la\/  has  for   tlie   interests  of    tbe  family. 


' -^-^Z^^^ZS^^^hc-'^u^        ,  *-'£^'-t/-<-*!»^CC<-f      ^ 


/^ 


i 


356. 

it  was  clearly  the  intention  of    fhe  legislature   that  ci-nall  estates  under 
$1,500  shall  go    immediately  to    the  family  without  further  administration." 

It   ic  further  contended  that  Sec.  14&4    is  atnorcious    to   the  constitut- 
ion, art.  2  £ec.   19,    in  that   the  title  of  the  act  of   1891,  Page  380,    is  in- 
sufficient to  sustain  it.      The  title  of    that  act   is,    "An  act   in  relation 
to  proceeding's   in  probate,  amending  sections  1299,    etc.,    of  the   Code  of 
v/ashiugton  of  18S1  and  repealing   sections  625,   etc."     Section  23  of    the 
act  of  1891   is   the  sccie  as  Sec.   1459  of   the  Code  of  1881,  v/ith  this   e::- 
ception;      that  the  Si-iount  of  the  estate  TLo  be  set  apart   is  changed  from 
^500  to  ^1,000.     Other  e-.isting  stctutec  were  amended  in  the    same  act  gen- 
erallj''  by  reference  to  the  particular,    sections  amBnded,  and  appellants 
contend  that  the    title   of  the   act  co  far  as  it  refers   to  proceedings   in 
probate  must  be  read  in  connection  with  the  enumerated  sections   of  the 
Code  of   laei.     State  e;:  rel.  Arnold  v.  riitchell,   55  Wash.  513,   104  Bac. 
791,   is   relied  on  as  authority.     That  case  does  not,   in  our  opinion,  go  so 
far  as  to  hold  the   title  under  consideration  insufficient.     In  that  case, 
a  Eubject-cQatter  \v'as    treated  that  was  \;holly  foreign  to  anything   suggested 
in  the   title,   v/hereas,  the  title   in  the  present  case  is   sufficient  to  sus- 
tain any  provision  germane   to  the  subject   "proceedings  in  probate." 

Finally,    it   is   contended  that   no  title  vested   in  the  widov/,    in  virtue 
of   the   order  of  ti:ie  cairt,   to  the  property  set  aside  only  for  her  use  and 
support.     "The   whole  estate"   is    set  apart.      The   statute  does  not  arsunie  to 
put  a  limitation  upon  the  power  of   sals,    and    in  the  absence  of  legislation, 
it   is  clear   that  \ra  cannot. 

Finding  no  error  in  the   judgment,    it   is  affirmed,     ^ 

Chadwick,  Parker,   Gose,    and  Mount,   JJ.,   concur. ~ 


y  O  f     ^^—y^  ,      /  J.  "r- 


j  'i 


357. 


lu  the  Matter  of    the  Estate;  of  Ellen  K.  Kill,  Ueceaces: 
STEV.'.JIT  E.  SIUTH,  Administrator,  Respondent,   v.   ELISIL\ 
P.  PERHY  et   al.,  E;:ecutors,  Appellants. 

(6  V.'ash.   285,   1893) 

Appeal  from  Eupe_  lor  Court,   KiD£-  County. 

The  opinion  of   the  court  v/as  delivered  by 

Scott,  J. — The  respondent  filed  his  petition  in  the  probate  depart- 
ment of  the  court  "below,  praying-  that  the  appellants,  as  e::ecutors   of  the 
last  will  and   testair.ent    of  George  D.  Hill,   deceased,  bo  ordered  to  render 
an  account   of    tho  community  estate  of  Ellen  K.   and  G-eorge  D.  Hill,  both 
deceased,  am!,   to  surrender  up  and  deliver   the   same  over  unto  the   said  pe- 
titioner  to   be  administered  -by  him  as   the  adrainicT;rator  de  bonis  non  cum 
testpraento  anne::o  of  the  last  v.lll  and   testa-ment   of  Ellen  K.  Kill.     To 
this  _etitio5  the  appellants  demurred,  aid   the  demurrer  bein^  overruled 
and  aji  order  being  entered  in  favor  of  said  petitioner  as  prayed,   appel-* 
lants  elected  to  stamd  thereon  and  have  perfected  their  appeal  from  said 
order  to  this  court. 

The  facts  as  shoMi  by  the  petition  and  confessed  6y  the  demurrer  are 
briefly  stated  as  follo\/E:      On  th3   14th  day  of  February,   1887,  Ellen  K. 
Kill  died  testate  at  the  city  of  Seattle,    -here  she  had  for  irany  years  re- 
sided -^.Ith  her  husband  George  D.  Hill,   and  \*iom  she  appointed  executor  in 
her  will.     On  the  2d  of  IIove.->bGr,   1887,  upon  the  petition  of  her  husband, 
said  ■'/ill  \;as  d.uly  admitted  to  probato  and  recorded  as  the   last  -.all  and. 
testameiat  of  said  deceased,  and  certificates  of   such  probate  and  record 
"./ere  granted  and  lecorded  as  recuiref.  by  la./.     George  D.  Hill  qualified  as 
such  e::ecutor,  and  letters  testamentary  were  issued  to  him  out  of  said 
court  on  the  12th  day  of  Hovember,  1887,  and  he  thereupon  entered  upon  the 
discharge  of  hir.    trust  as  such  ei'.ecutor,   and   so  continued  until  the  date  of 
his  death,  to  \.'it,    on  Decomber  4,   1890.     In  the  meantime  the    said  George 
D.  Kill  had  proceeded  gith  the  a^jninistration  of   the   said  estate,  and  had 
Partially  adi::iinisterod  and   settled  tho   samo,  aiil  h;id  partially  administer- 
ed the  community  property  v/hich  belonged  to  th:;  estate  of  said  decedent 
and  her  i:a.id.  Imsbcind  George  B.  Hill.       ITo  stops  v.-ere  talasn  to  give  notice 
to  the  creditors  of  tiie  said  couinunity,   or  to  bind  than  in  any..lse  by  the 
proceedings  had  in  the  administration  of    ttie   estate  of  said  Ellon  K.  Hill. 
Upon  the  death  of  George  D.  Hill,  his  ti'ust   as  e::ecutor  of  the  last  will 
and  testament  of   Ellen  K.  Hill  ./as  left  incor^^lete  and  unfinished.     He  left 
a    /ill  no.Tanating  the  appellents  as  his   e::acutor£,   and    the  said  -.All  was 
after^./ards,   in  the  month  of  Dece.-.-ber ,  1890,  duly  admitted  to  probate  in  the 
tlien  prob:.t3  court  of  King  county,  and   letters  testamentary  ./ere  duly  and 
regularly  issued  to  thess  appellants,   v.ho,  having  regularly  c ual if  ied,  ^en- 
tered upon  their  trust  as  such  e::ecutors,   end  have  ever  siiacs  been,  and- 
still  are,  the  daly  qualified  and  actii^-   aiecutors  of  the   last  -/ill  and 
tcstainent  of    IItb   said  George  D.  Kill,  decoased,   sad   their  letters  have 
never  been  revo".:ed.     Said  G::ecutorE   thereupon  entered  into  tl2B  possession 
of  all  tha  property  in  tlae  hands   of  their  intestate  at  the  time  of  his 
docoasG,  -..hich  embraced  a  large  a;aount   of  community  property  of  tthe  said 
Ellen  IC.  and  George  P.  Em,  and.  tlie  s.5parate  property  of  Ellen  Z.  Kill 


558. 

not  disposed  of  by  George  D.  Kill  in  the  progress  of  the  adniaistration  of 
her  estate.     They  thereuioon,  aiid  more  th£ii  a  year  prioi-   to  the  filing  of 
the  petition  of  res:.Jondent  in  the  court  'below,  imbliehed  notice  to  credit- 
ors; and  the  creditors  of  the  estate  of  the  said   George  D.  Hill, and  of  the 
conjrnuaity  estate  of  the   raid  George  D.   and  Ellen  IC.  Kill,  have  filed  claims 
against  Scid  estates  -..'ith  said  e::ecutors,  amountiiOe  to  nearly  one  hund.red 
thoucauu  dollars,    the  greater  portion  of  vhich  are  asserted  by  said  claim- 
ants to  be  coiTTiJiunity  debts  and  binding  ^xjQ^a  the   community  estate.     After- 
v/ards,   on  June  30,   1891,   letters  of  adminiBtration  de  boais  noa  of  the  es- 
tate of  the   caid  Dllon  K.  Hill,  '..'ith  the  vail  aane;:ed,    ..-eve  granted  ^y  the 
EUiJorior  court  of  King  county,  ?Jid  duly  and  regularly  issued  to  the  ipeti- 
tionor  Etev/art  E.  Smith,  v/ho  gvcv  since  has  been  a^   still  is   the  duly  ap- 
pointed ani  qualified  admiuietrator  de  bonis  non,   with  the  -.111  anne::ed, 
of  said  estate.     (Tho  appell?ntc,  as  e:cecutors  of  the   said  last  \/ill  ani 
tect:jnent  of  George  D.  Kill,  hold  the  possession  of  the  separate  estate  and 
the  cowjunity  ostats  of  Georgcj  PI  and  Ellon  K.  Hill,  deceased,  and  arc  pro- 
cecdiug  to  acjainister  said  community  estate,   snd  hr.ve  already  dis.:'0sed  of 
a  large  portion  thereof  in  the  regular  course  of  administration,  claiming 
tho  right  so  to  do  under  provisions   of   Ihs  will  and  the  direction  of  the 
superior  court  ofiisaid  county  sitting  in  probate.     Her  separate  property 
had  been  delivered  to  the  petitioner  before  the  instutution  of  tliis  pro- 
ceeding.    On  the  16th  df  t)Qoember,   1692,   the  petiltioner  served  upon  appel- 
lants a  demand  in  --Titing  requiring  them  to   sm-render  up  and  deliver   over 
to  sf-id  petitioner  all  the  property  azd  assets  v/hats'oever   belonging-  or  per- 
taiaii-i-  to  the  raid  coaauaity  estate,  but  appellants  refused   to  comply  vath 
the  said  demand  and  still  refuse  so  to  do. 

In  Ryan  v.  Fergussoa,   3  ■..'ash.  556    (28  xac.  Eep.   910),    ..-o  held  that 
upon   thg  de-th  of  either  husbaod  or  vlfe,  v;here  an  adrninistrstion  VTas  had 
of  the  GOiTSTQUiiity  property,   ths.t  the  sane  should  be  of  the  -.hole  thereof, 
and  not  merely  of    the  lialf   interest  of  tiie  decedent,    and   ftiat    tlie  whole 
conraunity  estate  is  siibject  to  adi-iiuistration  upon  tlie  death  of  eitlier  of 
the  parties. 

"ihere  the  separate  property  of    tiie  deceased,   2nd  the  conmunit;'  proper- 
ty of    the  deceased  and   the   surviving  spouse,   is  admnistered,   the  same 
should  be  Irept  separate,   for  the    separate  debts  of  the  deceaced  v/ould  be 
primarily  a  charge  upon  the  separate  property,    a:nd  the  community  debts 
v/ould  be  priaaarily  a  charge  npon  the  comraunity  property.     In  case  there 
should  not  be  enough  of  the  separate  i^roperty  to  pay  the  separate  debts, 
the  deficiency  could  bo  made  good  out  of  the  decedent's   interest   in  the 
community  property,   sliould   there  be  anythir^  remaining  after  the  pajaent 
of   the  community  debts,  ani  the   same  \.^ould  be  true  ^.ith  regard  to  cs.  de- 
ficiancy  of  the  comtiunity  property,   as  after  separate  debts  had  been  paid 
the  remainder  of  the  separate  property  ^70uld  be  liablS  for  the  community 
debts  so  ranaining  uapsid.     However,  where  administration  has  teSnih-'^d  of 
the  separate  property  of   the  deceased,   and  the  vh.ole  of   the  community  prop- 
erty,' or  even  only  of  the  half  interest  of   the  community  property  belong- 
ing to  the  deceased,  and  the  ssme  has  not  been  kept   separate,  but  the  prop- 
erty has  been  commingle:',  indiscriminately,    £ind  the  separate  debts  of    the 
deceased  and  the  commvinity  debts  have  not  been  classified  or  Icept  separate, 
but  have  been  dealt  v/itti  in  common  as  standing  upon  an  equal  footing  again- 
st all  of  the  property,  regardless  as  to  whether  it  was  the  separate  proper- 
ty of  the  deceased  or  the  community  property,   or  a  part  of  it,  and  the  same 


359. 

hac  been  allowed  to  go  through  unquestioned  by  the  creditors,  or  any  of  •' 
them,  or  any  of  the  partiot.  interested,  such  administration  at  most  would 
only  be  irregular,  and  not  void, 

T7e  are  also  of  the   opinion  that  administration  rcay  be  had  of  the 
separate  property  only  of  the  deceaced  manber,   if  no  more  is  required  by 
the  creditors,  or  by  the  parties  interested.     As  to  how  far  creditors   of 
tho  community  \;ould  be  estopped  tihero  the  coraraunity  property  is   administer 
ed  upoii  the  death  of  the  \;ife,   for  instance,   or  where  only  one-half   of  tho 
conmunity  property  has  been  so  administered,  from  thereafter  present  ins 
their  claims  against  the  estate  of  the  husband  after  his  decease,   there 
may  be  some  question,   acd   the  solution  of  it  may  de:^end  upon  the  notice 
given  vjhero  the  claims  were  not  presented  during  the  first  administration. 
If  they  were  presented,   tho  parties  v.ould  bo  bound  by  a  participation  and 
acquiescence  in  the  adninistration.     But  a  claim  for  a  balance  unpaid  ow- 
ing  to -a  deficiency  could  probably  be  preserved.     Regularly  v^iere  upon 
the  death  of  either  husband   or  vdfe  administration  is  had  of  tho  separate 
property  of  the  deceased,  and  of  iQie  community  property,  a  notice  should 
be  given  to   tho  separate  creditors  of  the  deceased,  and  also  to  the  credit- 
ors of  the  commimity,   to  produce  their  claims,   etc.     In  case  the  debts 
against   the  community  were  contracted  by  the  deceased  a  notice  to  his 
creditors  would  be  sufficient   to   inclijde  sugh  creditors  of  the  community. 
But  this  would  not  be  true  if  such  community  debts  were  contracted  by  the 
surviving  member,    at   least   in  the  absence  of  actual  notice.     For  instance, 
if  the  community  debts  had  been  contracted  by  the  husband,  as  is  usually 
the  case,  uj?on  the  death  of  the  v/ife  a  notice  to  her  creditors  -..'ould  not 
be  notice  to  the  creditors  of   the   communits',  but  upon  the  death  of  the 
husbaxid  a  notice  to  his   creditors  would   include  tho  creditors  of    the  com- 
munity,  for  they  could  fairly  be  said  to  have  had  notice,    the  coranionity 
debts  having  been  contracted  iy  the  husband;  and   the  rule  \^ould  hold  good 
of  course  if  the  parties  \vere  changed  in  cases  wliere  the  community  debts 
were  contracted  by  the  v/ife. 

in  this   case,  upon  the  death  of  the  \.lfo,  her  separate  property  was, 
of  course,   subject  to   foe  probate  court  for  the  purposes  of  settlement  and 
distribution;   and   the   same  was  true  v/ith  regard  to  the  whole  of  the  com- 
munity x^roperty  of  the  deceased  and  her  husband  George  D.  Kill. 

We  are  of  the  opinion,  however,   that  a  husband  or  \a.fe  cannot   appoint 
an  ei:ecutor  to  talB  clx-rge  of  the  community  estate  to  the  e:;clusion  of   the 
surviving  spouse,  but  the  survivor  ijould  be  the  only  one  v/Itd  could  question 
the  samo.     Such  an  ?ppointment  '/ould  be  good  as  against  all  others.     Al- 
thou^  in  tlie  administration  of  such  ©states  a  separate  account  should  be 
Irapt  of  the  Gomaunit;'/  property  and  of  the  separate  property  of  the  decedent, 
yet,   as  a  iratter  of  convenience  an-,  economy  as  well,  the  v.hole  should  be  in 
the  hands  of  the.  same  person  for  the  purposes  of  administration.     But  this 
need  not  be   so  necessarily  ac  a  matter  of  la'..',  arc!,  could  not  be,  at  least 
ordinarily,  -.hei-e  the  appointment   of  tlie  e::ecutor  named  by  the  decedent  is 
not  consented  to  by  the  surviving  husband  or  vdfe,   or  \^ere  the  survivor 
does  not  \.'aiVG  his  or  her  ri::h'ts  in  the  premisos.     V/here  the  person  named 
aa  e::ecutor  in  the  v/ill  cannot,   for   tho  reasons  stated,  be  appointed  to 
ta??B  charge  of   the  community  estate,   an  administrator  thereof  should  be 
appointed,  to  v;hich  ^;pointment   the  surviving  spouse,  or  the  pert^on  he   or 
she  might  nominate,  v.ould  have  preference.     Sec.  900,  Code  I  roc.     Such 


360, 

adrainistrator  v;auld  be  ontitlod   to  the  whole  of  the  comiiunity  eetate  for 
the  purposes  of  admlaictratiou.     But   the  admiuistration  of  such  separate 
estate  of  the  deceased  and  of   the  conrounity  property  vould  be  one  proceed- 
ing in  the  sense   t3i2,t  it  would  only  be  necesBary  for  creditors  to  present 
their  claims  onca« 

The  deceased  died  testate,  btrt  she  appointed  her  husband  o:tecutor, 
and  he  entered  upon  the  ddmiuistration  of  her  separate  estate,    snd   tlie 
Tirtaole  of  the  coraraunity  estate.     Upon  his  death  the  orderly  procedure  ^/ould 
have  been  to  have  had.  a  settlement  with  his  representatives,  under  Sec.  941 
Code  i'roo.     -.hereupon  the  separate  estate  of  Slleu  K.  Hill  and  the  whole 
of   the  community  ©state  of  said  deceased  parties  should  have  been  turned 
over  to  her  representatives,  as,   she  having;  died  first,  her  representatives 
were  entitled  to  adininister  the  comnunity  property.     Lav/erence  v.  Belling>- 
ham  Bay,   etc.,  R.  R.  Co.,  4  Wash.  664   (30  Jrac.  Rep.  1099.) 

In  this  case  the  creditors,  at  least  all  of  the  coraraunity  creditors, 
v/ould  be  barred  by  reason  of  the  notice  published,  aud  their  failure  to 
oTjject,  from  raising  any  question  against  administering  th©  community  prop- 
erty in  the  settlement  of  the  estate  of  George  D.  Hill.     VfliethGr  the  credit" 
ors  of  her  separate  ©state  could  raise  aay  question  thereover,   in  case  her 
separate  property  v/as  not  sufficient  to  satisfy  their  claims,   is  more  dif- 
ficttlt  to  determine,  but  it  is  sufficient  to  say  that  none  of  the  creditors 
in  this  instance  are  complaining,  and  the  claim  of  the  petitioner  rests  up- 
on his  sol©  personal  risht  to  administer  the  community  prcrperty.     it  seems 
as  thou^i  it  v/culd  be  incumbent  on  her  separate  creditors  to  move  with  dil- 
igence after  receiving  notice,  to  have  the  community  property  administered 
in  the  settlement  of  her  estate  unless  they  were  satisfied  to  take  the 
rislc  of  having  their  claims  paid  in  full  out  of  her  separate  property,  and 
did  not  desire  to  preserve  any  ri^ht  asainst  the  community  estate  for  any 
deficiency  that  might  result. 

It  appears  that  the  representatives  of  George  D.  Kill  entered  upon  the 
administration  of  hia  estate  in  the  month  of  December,  1890,  and  continued 
the  administration  of  the  community  property.     Ho  one  objected  to  this,  but 
said  proceedings  v;ere  allowed  to  go  unquestioned  for  some  tv«)  years,  and 
until,  the  rponth  of  December,  1892,  v/hen  the  petitioner  instituted  this  pro- 
ceeding to  recover  possession  of  the  caatiunity  estate.     It  does  not  appear 
that  any  creditor  of  the  docoased  has  aslcec.  to  liave  the  possession  of  this 
property  turned  over,  or  to  have  the  same  administered  in  the  estate  of 
Sllen  K.  Hill,  nor  does  it  appear  that  any  of  the  heirs  or  devises  ever  made 
such  a  request,  nor  aay  of  the  parties  interested  e::cepting  the  petitioner, 
and  we  are  of  the   opinion  that,  whatever  personal  right  he  may  have  had  to 
administer  the  community  estate  he  has  lost  by  reason  of  his  laches  in  the 
premises.     It  was  incombent  on  him  to  have  proceeded  with  diligence  to  ob- 
tain possession  of  this  pi-operty;  not  to  sit  by  and  see  the  same  administer. 
ed  in   the   settlement  of  the  estate  of  George  D.  Kill  without  objection.     He 
v/as  appointed  in  Jtuie,  1691,  and  for  a  year  anek  a  half  slept  ^pon  whatever 
rights  he  had  in  the  premises. 

Ue  are  of  the  opinion  in  any  event  in  a  oas©  like  this  the  ordinary 
rul©6  relating  to  the  liability  of  ©::ecutors  de  son  tort  would  not   apply, 
even  in  the  absence  of  a  statute  upon  the  subject,  although  we  have  one 
v^iich  v/ould  have  some  bearing  thereon.  Sec.  708,  Code  iroc.       And  that 


o^^c^ 


^     ^ 


c       ; 


^^^"^ 


.u-4-*c^ 


JSt:^^T--i't>'*-2-ti<i^^^'i.e^ 


y^^^^^-oi^^t^.^'x^^^     /  cf^a^ut^    J  -j^^^-^^^^^*-*^ 


._^ 


361. 

such  an  administration  of  communifrv'  propert3'-  could  anount   to  nothing  more 
than  an  irrogulorifcy,    of  \7hich  advaiit,-:.,';e  must  be  seasonably  taJ-cn  during 
the  pendency  of  the  proceeding,    if  at  all,  and  otherwise  that  the  same 
would  be  valid  as  far  as  the  question  of   the  ri^ht  of  the  representative 
of  either  spouse  to  alrc'Uister  the   came   is    in70lved.      The   liabilities   of 
the  estate   in  cither  event  would,    of  course,  be  the  6ame  as  to  claims 
presented. 

It  appears   in  this  case  that   in  the  adrainictration  of  the  estate  of 
George  D.   Hill  a  notice  v;as  duly  published  to  creditors;   and  his  creditors, 
including  all   the  creditns   of  the  conrriinity  as  far  as  knovm,   have  pre- 
sented their  ciaims ,  and  the  time  for  presenting  claims   in  the  settlement 
of  said   estate  has  e::pired.      It  would  be  a  hardship  upon  these  creditors 
v.ho  have  presented  their  demands  against  the  community  estate  under  such 
circumstances,   if  the  proceedings   are  to  be  interrupted  and  suspended, 
and  the  property   transferred  to  another  estate  for  settlement  v/here  all 
of  said  claims  must  be  again  presented,  and  the  proceedings  again  largely 
gone   through  with  from  tiie  beginning  by  another  officer  of  the   same  co\irt. 

It  seoDC   that  George  D.  Hill  published  no  notice   to  creditors   in  ad- 
ministering his  vd.fe'c'  estate.     The  petitioner  has  done   so,  however,   and 
the    time  for  presenting  claims   therein  has  not  yet  er.pired. 

Ho  complaint   is  made   that  his   estate  has  been  mismanaged  in  its  set- 
tlement.     In  fact  it    is  admitted   that  the   e::ecutorE  of   George  D.  ?Iill's 
estate  are  thoroughly  sltillful  and  competent,   and  that  they  have  been  and 
are  well  and  faithfully  discharging  the  trust.     7/e  are  of  the   opinion 
that  jthejpetiti oner  is  estopped  from  setting  up  anj'-  alaim  of  right   to  ad- 
ffiihister  the  comimnity^^roporty   in  question,   ana~the"  decisibh  of   the   sup- 
erior court_  is -reversed^  and  the  cause  remanded  for  further  proceedings. 
There  may  be  some  question  as  to  \^iether  the  point  upon  v^nich  this  case  is 
determined — the  question  of  estoppel — is  raised  by  the  appellants   in  their 
brief.     Tlie  facts,   however,  are  stated,   although  the  question  of  estoppel 
itself  is  not   therein  argued.      In  sons   instances  the  court  may  talce  notice 
of  a  point  not   argTied,   for  the  purpose  of  arriving  at  a  just  decision 
upon  the  merits,  although  a  different  rule  might  be   invoted  to' avoid  a 
harsh  decision.     Hiis   seems  to  be  '..Ithin  the  spirit   of  S   ec.   144-8,   Code 
Proc,   and   is   one   of   the  purposes  vAiich  this   statute  may  v.^11  serve. 

Eoyt  and  Anders,   JJ.,   concxir. 

Stiles,   J. — I  concur   in  the  result  reached  in  the   foregoing  opinion, 
but   I  thinl:  many  matters  liave  been  argaed  and  decided  v5iich  are  not   in 
this   case.     The  rights  of  heirs   and  creditors  are  not   in  any  way  involved 
in  the   question  v;hich  of  those   t-./o  persons  shall  administer  said  estate. 

Dunbar,    C.   J.,   dissents.  o  ->      , 


362. 


.'JllTRA  I>IAa;E  et  al.,   Aprellants,   ■?»  BIG  BEHD 
MUD  Cd'i'ilW,  Respondents. 

(51.  V/ach.   406.      1S09.  ) 

Appeal  from  a  judgment  of  the  superior  court  for  Douglas  county, 
Steiner,  J.,    entered  January  2,   1908,  dismissing  on  the  merits  anjiction 
to  quiet  title,  etc.,   atcer  a  trial  'berore^  fJie  Ho  our  t  without  a  jurj^. 
Affirmed  '. 

Duntar,   J. — In  the  year  1883,  F rani:  Rush o  and  his  vdfe,  Ilagdalene 
Rusho,  purchased  and  mo^/ed  upon  the   land  involved  in  this  suit,  v/hich  was 
in  Douglas  county,   V/ashic-'ton.     Mrs.  r.usho  died  in  said  Douglas  county  in 
the  year  1887.     Her  estate  was  not  probated  up  to  the   time  of  her  hus- 
band's death,    to  wit,    in  1889.     A  married  daughter,  v/hoso  name  •vQ.s  llelder, 
died  leaviug  'jurviving  her  the  plaintiff  ii.rchie  D-  Melder,   and   it   is  not 
shovm  by  the  record   that  a  guardian  was  appointed  for  said  Archie  D. 
Melder  during  the  tines  hereinafter  spokan  of.     In  the   early  part  of  the 
year  1889,  Frank  Rusho  moved  from  Douglas  county  to  the  county  of  Stevens, 
TAiiere  he  died  June  16,    1889.     The  plaintiffs,   cave  lielder,  who  v.-as  a 
grandchild,  are  all  children  of  the  said  Franl:  Rusho  and  his  wife,   and  a 
majority  of  them  were  minors  Then  their  parents  died.     ;\i"ter  the  death  of 
the  father,   an  administration  of  his   estate  took  place  in  Stevens  county, 
out   of  -./hich  an  order  of  sale  v;as  issued,  purporting  to  sell  the  real  es- 
tate  to  the  respondent  for  ^1,400.     For  the  purpose  of  removing  a  cloud 
from  the  real  estate  above  set  out,  and  to  recover  the  rents  and  profits 
and  the  possession  of  the   land,   this  action  was  commenced  by  tlie  plaintiffs 
against  the  defendant.     An  answer  \.'as  filed  and  a  reply,   and  on  the  11th 
day  of  September,    1907,   at  V/aterville,  Douglas  county,   said  action  was 
tried  and  a  decree  rendered  dismissing  the  action  and  refusing  the  plain- 
tiffs,  the  appellants  liere,  relief  of  any  kind.     From  this   judgment,   this 
appeeil   is   talren. 

Several  errors  are  assigned  by  the  appellants,   but  they  all  revolve 
around  the  question  of  whetlier  the  coui-t  had  jurisdiction  to   sell  the  land 
which  is   the  subject  of  the  controversy.      If   it  did,   then   the   judgment   of 
the   lower  court  should  be  affirmed;    if   it  did  not,    it   should  be  reversed. 
The  respondent   set  up  t',.-o  affirmative  defenses,    basing  its  title  to  the 
land,    (1)   on  a  sale  made  by  the  administrator  of  the   estate  of  Frank  Rusho ; 
and   (2)   on  an  estoppel  based  on  a  distribution  to  the  heirs  of   the  money 
paid  by  it  to  tlie   administrator-     Evidence  was   introdiaied  sho-..lng  the  facte 
stated  in  relation  to  the  residence  and  death  of  Frank  Rusho  and.  his  wife, 
and  of  theii'  acquisition  of  the  land  mentioned. 

It  is  earnestly  contended  by  the   sppellants  that  the  real  property  in 
controversjr  was  the  com,avinity  property  of  Rusho  and  vTife,  and  that  the  ad- 
ministration of  the  estate  by  Ilagee,   v,lio  was  appointed  administrator  by 
the  probate  court  of  S  tevens  county,   vas  only  an  administration  of  the  es- 
tate of  Frank  Rusho;   that  he  had  no  authority  under  the  probate  proceedings 
to  administer  the  estate  of  I'lagdaleue  Rusho,    and  that  the  proceedings 
t];ie i^eunder ,  so  far  as  her  estate  was  corcemed,  v.-ere  void  and   of  no  force 
anc.  effect.      In  Ryan  v.  Ferguson,   3  V/ash.   356,    28  Pac.    910,   v/e  held  tliat 


563. 


upon  tte  death  of  either  hus^baiid  or  v/Lfe,  where  an  adrainistration  was  had 
of  the  ccii.-;:c!ri:.ty  propcrt;/,    fho  Faue    shoald  Irio  of  the  vjhole  thoreof  and 
not  merely  of  tiie   nv.li   inheres  c  of  t>t  a-'.ce'-.oni;,  aiid  that  the  -rfnole  com- 
mxinity  estate  is   sutject  to  adminis trat-f. en  xi.pon  the  death  of  either  of  the 
parties.     To  the  ror.e  effect  i^   In  re  Eix:"c  Ssta:;e,   6  Wash.  285,   33  Pac. 
565.     So  that,  c.ou.?od:.}:g  the  conraimioy  charticter  of  the  estate,  under  the 
authorities  iCuove  asjitioncid  it  vas  subject  to  i^rohate  under  Magee's  ad- 
ministration. 

The  petition  furtl^er  proceeds  to  chov;  the  cord  it  ion  of  the  estate, 
and  the  -oecensioy  for  selling  the  land   to  reet  the  e::i:nu::es,  \/e  thinl: 
the  PvStitnon  \var,  airj:l7  s-'ificient  to  give  the  coui't  jurisdiction  to  order 
a  sale   of  the  real  estate. 

11:6  viev/  we  taire  of  the  jurisdictional  question  renders  unnecessary 
the  discussion  of  the  further  contention  of  the  respondent   that  the  ap- 
peliaaf:s  are  estopped  from  brineins  this  action  by  reason  of  liavins  re- 
ceived the  procefvdr,  of   the  sale  of  the   lend,   the  appellants  at  that  time 
all  appeaj-ics  at  the  decree  of  distribution,   the  minor  Archie  D,  Ilelder 
appearing  by  his  guardian  ad  litem. 


The  judgiT-ent  will  be  affirmed.  p^ 

Crov/,  Ilount,   and  Fuller  ton,  JJ.,   concur. 


-k' 


^^t^<i''^^^ 


"^ 


364. 


ROSS  K.   CHA!ICHrE,  Recpondont,  v.    ORILLi.  C/JLCA 
etc . ,   Gt  £•.!.,  Appellants . 

(75  V/a,*.    249.      1915,  ) 

Appeal  from  a  jvidgrcent  of  the  superior  court  for  King  county,  Dyl:e- 
man,  J.,  entered  IToveifbcr  22,  1912,  upon  findings  in  favor  of  the  plain- 
tiff,    in  an  action  to  qtiiet  title.     Afiirnied. 

Pullorton,   J. — ThJTi_action  tras   instituted  "by  the  respondent  against 
the  appellants   to, siuiet  title    in  herself  to  certain  real  property,    situ- 
ated in  the  city   of  Seattle.     She  l-iad  judgaent   in  the  court  ■belo\7,   and 
this  appeal   ic  prot^ecuted  therefrom. 

Ihe  facts  giving  rise  to  the  controversy  are  not  complicated,   nor 
seriously  in  dispute.     On  Ccto"ber  17,    1904,   Catherine  Stetson,   vafe  of 
T/arren  E.  Stetson,  died  intestate,   ]-,aving  an  estate  consisting  of  prop- 
erty held  in  community  vath  her  husbaD.d,   of  a  value  in  excess   of  $300,000. 
The  appellants  other  thaa  th»  appellant  L.  V-   Hewcomb  are  children  of 
Catherine  Stetson  and  Warren  C.  Stetson,  and  1-^r  heirs  at  law.     Pollowiiig 
the  death  of  Catherine  Stetson,  "iVarren  C.  Stetson  took  out  letters   of  ad.- 
ministration  on  her  estate,  caused  an  inventory   of  the  property   thereof 
to  "be  filed  and  the  property  to  te  appraised,   "but  seemingly  proceeded  no 
further  vvith  the  administration  in  the  probate  court.     The  debts   of  the 
estate,   if  anytliiing  at  all,   veve  inconsiderable.     The   administrator  at  no 
time  had  a  settlement  vath  the  heirs,   all  of  whom  had  reached  the   age  of 
majority;  but,   from  time   to  time,  he   turned  over  to  them,  and  advanced  for 
their  use,  moneys  which  aggregated  soirothing  over  $52,000. 

On  Hovember  27,   1906,  lyarren  C.  Stetson  pinrchased  the  property  here 
in  {juestion,  paying   therefor  $4,400  in  cash  and  assuming  a  mortgage  there- 
on of  $2,600.     This  mortgage  he  renev/ed  in  his   o;vn  name  soice  two  years 
later.     On  December  1,   1906,   the  respondent   entered  into  the  possession 
of  tie  property,  which  possession  she  retained  at  the   tine   of  the   trial 
of  this   action.     The  respondent  made  some   improvements  on  the  property 
during  the  time   of  her  possession  -.hich  she  estimated  to  have  cost  her 
some   five  hundred  or  si::  hundred  dollars,  but  Stetscaa  himself  paid  the 
taxes  and  assessments  levied  against  tl-£  propert3r  during  that  time,  as  -.veil 
as  the   interest  as   it  accrued  upon  the  mortgage  up  to  the  time   of  his  death, 
v,hich  occurred  on  Hovember  13,    1911. 

On  Ilay  9,   1910,  Stetscsa  e:cecuted  and  aclmowledged  a  warranty  deed  to 
the  property,   subject  to  the  mortgage,   in  favor  of  the  respondent,   vhich 
he  placed  in  an  envelope,    together  vath  the  deed  to  himself   for  the  prop- 
erty,  and  vdiich  he  had  not  theretofore  had  recoi-ded,  v.Titiug  on  the  oivel- 
ope  the  follovidug  instruction: 

"V/arranty  deeds  to  be  held  until  my  demise   then  put   of  record,    the  one 
to  me  just  before  the    one  from  me.  '   To  be  in  care  of  Hiss  Julia  McFadden. 

V7.  C.   Stetson." 

At  the   time  of  e-cecuting  the  deed,  which  was  prepared  for  hira  by  Hiss 


365. 

IlcFadden ,  he  stated  to  her  Ms  pvrposQ  in  executiir;  the  deed,  and  gave 
her  instraotions   to  get   it   and  put   it   of  record  cliould  anything  happen  to 
htm,    telling  her  v,n.oro  th'^  deed  could  "be  fcv;cd,  and  cau.tioning  her  not   to 
forget  it.  .  M.'.D3  I.iol^£d'r.oi-i  niarriod  a  I'r.  Jolmtion  cliortly  thereaf  kei-  £:ad 
left  his  employ,   althouyii  che  continued  to  live   in  Seattle,   and  at  tines, 
at  his   Epeoial  reipiert,  porformod  clerical  services  for  him.     Soire    fiiree 
v»Be".C£  preoeding  h.i  s  death,  Mr.  Stetson  Jiad  Ilrs  .  Johnson  called  to  his 
homo,  v/hore  he   was  confined  by  illnecs,   when  h'=5  rewosted  her  to  go  to 
his   office  and  get  a,  fc:".n  box  in  vAiich  he   kept  >tis  TP'luable  pgtpers,   re- 
minding her  again  of   tin  deed  and  per  prordse  to  record  it.     Ivlrc.    Johnson 
could  not  go  on  that  particular  day,  but  promiKed  to  go  mthin  a  day  or 
two.     To  this  he  arisented,   reciuestizig  her  to   go  as  soon  as  she  could; 
adding  that  v^.en  sIb  \vax;  ready  to  go,   to  corce   by  and  he  would  give  her  the 
Icevij,     Mrs.   John-'jon  v.'as  called  av.ny  for  a  couple   of  v.nolin  vdthcut  perform- 
irg  the  errajid,  and  v/teu  rhe  returned  she  f  ot;ni  Mr.  Stetson  in  a  comatose 
condition  end  imable   to    talk,   a  condition  in  \'iiiich  he   continued  until  his 
death  a  few  dcys  later.     Prior  to  lirs.   Joh_n3on's  return,   hoi-tever,  he  call- 
ed tie  attention  of  his  housekeepea-  to  his  :<E-ys  and  requested  that  she  take 
them  and  give   them  to  Ilrs,  Johnson. 

In  thisccui-t   the  appellants  make   two  principal  contentions:     first, 
that  there  v.as  no  sufficient  deliver^'-  of  the  deed  to  constitute   a  gift 
of  the  property  to  the  respondent;   and  second,   that  the  property  vas  pur- 
chased v.dth  the   funds  belonging  to  the   estate  of  Cat:-£rine  Stetson,  and 
hence  could  not  be  the   subject  of  a  valid  gift  by  V'arren  C.  Stetson. 

On  the  first  question  suggested,   counsel  hr.ve  made  an  e::tended  argu- 
ment, and  have  cited  many  cases  from  other  jurisdictions  bearing  more  or 
less  closely  upon  the  question  involved.     Tlisse  cases,   however,  we  slmll 
nofc  notice,   as  we  think  the  question  is  detenained  by  our  o\m  cases.     In 
Atv/ood  V.  Atwccd.,    15  V/ash,    285,  46  Pac.    240,   r^  held  that  a  deed  found 
among  the  papers   of  the  grantor  after  his  death,  -.here  no  change  of  pos- 
session was  made  of  the  property  anC  \/here  the  evidence  showed  no  intent 
on  the  part  of  the  grantor   to  pass  title   to  the  pi-operty  during  his   li:fe- 
time,  did  not  constitute  a  sufficient  delivery  of  the  deed   to  pass  title. 
Attention,   hov/ever,   was  called  to   the  fact   tliat  an  actual  phji-sical  deliv- 
ery of   the  deed  M3.s  not  necessary  to  constitute  a  valid  delivery;    that  it 
was  often  a  question  of   intention,  and  that  a  deed  may  beco!.;e   operative 
even  though  itsmanual  possession  be  retained  by  the  grantor.     "But  in 
such  cases,  before  the  court  can  fird  a  delivery,   the   intention  to  consum- 
mate the   trnncaction  so  as   to  fully  vest  the  title   in  the  grantee  must  be 
clearly  shown,"  aid   it  was  found  that 'no  such  intent   appeared  in  the  case 
then  in  hand.     In  llatson  v.   Jolinson,  48  Hash.   256,   93  Pac.   324,  ]©5  Am.  St. 
924,    effect  was  given   to  the  rule  corceded  in  the  case   of  At'.vood  v.  At- 
wood,   supra ;    the  court  saying: 

"TJI^at  was  lacking  in  the  At\'Ood  case,  viz.,   the   intention  to  consxim- 
mate  tlB  transaction  so  as  to  fully  vest  the  title   in  the  grantee,  was, 
in  our  opinion,  clearly  and  xmequivocally  shcf.'n  in  this  case.      The  v/ill 
and  deed  were  e::ecuted  at  the  saiae  time  and  as  a  part  of  the  same  transac- 
tion.    The  real  propertj^  was  o.nitted  from  the  will,  no  doubt  advisedly,  and 
all  the  surrounding  circumstances  sho^T  conclusively  that  the  grantor   in- 
tend.ed  to  convey  his  real  property  to  these  minors,    that  the  deed  was  exe- 
cuted for   tltist  purpose;   and    in  our  opinion  the  mere  absence   of   an  acknow- 


366. 

ledgment   is  not  sufficient  to  defeat  hie  e:rpressed  intentions." 

In  the  car.e  at  "oar..   v.e  think  the   intention  to  consuimiate  thri   transac- 
tion,   and  vest  in  triG  ;^rau.t6e  the   f:.:ll  title  to  the  pro;:erty  is  clearly 
and  unequivocally  Sxio^tri.-     The  respondent  t;3,k  not  cnrj  al  lov.ed  to  enter 
into  possession  of  t':ji  prsmisec  vathin  a  few  days  after  it  was  prnrchaned 
T3y  Ur.  Stetson,  "but  v;as  allov;ed  to  remain  in  such  po^. ssssion  as  loo?  as 
he  lived  thereafter-     She  mr.de   improveraents  upon  the  prenir-es   if  not  v;ith 
his  aoquie:;ce7ice  certainj.y  v.lth  his  loinvjlsdse.     She  paid  no  rent,  nor  did 
she  account   in  any  way  to  him  for  xjse   of  tha  premises.     He  imde  a  deed  to 
her  for  the  premises  qxtI  c3iar~od  anot>?r  -.vith  the  dixty   of  recording  the 
ijis  trumer'.t  after  his  death;   s^ing  so  far  as   to  attempt   to  put  that  person 
in  po::sGSsion  of  the  deed  xlhen  he  felt  that  Ms  death  vas  near.     She  tech- 
nical fai].ur*^  of  his  effort  we   thinlc  should  not  1)6  allowed  to  defeat  his 
manifest  pux'pose. 

In  support  of   their  c&cond  contention,   the   appellaats   sought  to  showf 
that  'Varren  C  stetson,   at  the   time  of  his  ^vi.fe's  death,   had  no  separate 
property,  and  they  argue   tlxrefroin  tl:iat  the  laad  here  in  qusstion  raust 
have  been  purchased  -uith  fuiiLs   of  the  estate,   aM.  hence  was  property  of 
the   estate  vhich  could  not  he  conveyed  a'.vay  hy  the   administrator  vathout 
the  consent   of  the  heirs,    cr  an  order  of  the  prchate  court.     But  this  ar- 
gument  overlooks  the   fact  that  Stetson  did  not  stand  with  relation  to 
this  estate  on  the  plane   of  an  crdinarj'-  adrainistrator  whose  sole  interest 
in  the  property  is  derived  from  his   appointnant  as  administrator.     Upon 
the  death  of  Catherine  Stetson,   one-h;:-JJ   of  the  property  vjent   to  him  in 
his    ovrn  ri^t,   su.hjcct  only  to  the  coraronity  dehts,   aud  the  expenses  of 
tlie  administration.     V.hen  these  were  satisfied,  his  title   to  the   one-half 
became  ahsdute,   and  he  -caa  tllen  entitled  to  l:a.ve  such  portion  segregated 
from  the  portion  of  the  heirs  and  set  apart  to  him.     In  this   state   it  is 
not  essential  to  a  valid  partition  of  property  of  an  estate  betv/een  the 
persoEs   entitled  thereto  tliat  an  order  of  the  probate  court  be  had  for 
that  purpose.     If  the  heirs  are  adults,   end  the  claims   of  creditors  be 
satisfied,   a  valid  partition  can  be  made  by  agreement.     Griffin  v.  T7arbur- 
ton,   23  T7ash.   231,    62  Pac.   765.     .Ind  here  T.-e   think  there  was  a  partition 
by  agreSment  as  to  part  of  the  property  of  tlE   estate.      It  will  be  remem- 
bered that  the  adninis trator   turned  over  to  the  heirs  money  in  the   sum  of 
$52,000,     If  tiB  estate  was   intact  \-iien.  this  was  done,    and  there  is  no 
sho^7ing  to  the  contrary,    the  acceptance   of  this  sum  by  the  heirs   implied 
an  assent   to  the   taking  by  the   administrator   of  a  lite  sum  in  his   own 
right.     And  if  tliereafter  the  administrator   so  managed  the  balance  of  the 
property  of  the   estate  as  to  lose  the  greater  part   of   it,   leavihg-  an  in- 
sufficient amount  to  mal^   goal   tlx  full  proportion  of   the  heirs,    the  heirs 
cannot  call  upon  those  acquiring  rights  under  the  original  partial  parti- 
tion to  mal'33  good   these  losses.     So  in  this    iustarce,   if  Stetson  purchased 
this  property  with  moneys   accuired  by  him  on  the  partial  partition,   the 
title   of  the  person  to  \/hogi  he  conveyed   it   is  good  as  against  the  claim  of 
the  heirs.     There   is  no  direct  evidence  on  this  particular  question  in  the 
record.     The  circumstantial  evidence   is   in  its  favor.     The  property  was 
purchased  shortly  after  the  principal  advancement  vas  made  to  t:-:D  heirs, 
and  at  a  tir:t!  before  the  estate  had  suffered  any  serious  financial  losses 
as  a  result   of   the   administrator's  mismanagement. 

V/e  conclude,    therefore,    the.t  the  judgment   of  the   trial  court  should 
bo  affirmed,   and   it  will  be  so  ordered. 

Main,   Ellis,  and  "orris,   JJ.,   concur.  ^   '^  ^"^^    ^     \  ^ 


567. 


IN  ro  BURDIOX'S  ESTATE. 
(Ho.    15,069.) 

(Supreme  Court  of  California.    April  13,  1896.) 
(112  Cal.  387) 

la  "bank.    Appeal  from  superior  court,  Alameda  county;  John  EllE\7orth, 
Judge . 

In  the  matter  of  the  estate  of  Stephen  Powell  Burdick,   deceased.     IHie 
e;:ecutor  filed  his  final  account,   and  a  decree  was   mccred  cettling  his 
accounts  and  ordering  a  distritution.     F  rom  this  decree,   or  a  part  there- 
of,  the  executor,  A,  ''*?.  Burdick  and  A.   II.  Sutton  as  trustees,  and  A.  V. 
Burdick  in  bis   ov/n  ri^ht,   appeal.     Dismissed  as  to  trustees,  and  as  to 
other  appellants  affirmed. 

Temple,  J — Deocmher  12,    1D9E,   the  execntor  of  the  ahovo  estate  filed 
his  final  account,   and  prayed  for  a  sattlernoit   thereof  and  for  a  distri- 
■bution.     !Ehe  bill  of  e:cceptions  stated  "that  by  said  final  account  it  ap- 
peared that,   after  payment   in  full  of  all  clainjs  against  the  said  deceased 
and  said  estate,   the   expenses  of  the   last  sickiess,  aiaf.  all  funeral  charges, 
and  all  accrued  expenses  and  charges   of  the  ad;Tijjaistration  of  said  estate, 
there  remained  in  the  hands   of  said  executor  a  ■balance  in  money  of 
$1,855,41,  from  which  said  executor   asked  to  he  allo-.vcd  a  reasonahle  ^^.t- 
torney's  fee,  to  "be  fixed  by  the  court,    together  with  such  further  ex- 
penses  of  administration  as  miglit  thereafter  accrue,   end  that  the  balance 
"be  distri"buted  to  the  parties  entitled  thereto."     The     bill  of  exceptions 
then  proceeds   to  give  an  extract  from  the  pecition  accompanying  the  final 
account,   in  v.hich,   among  other  things,    it   is   stated,    in  su'-jstance,    that 
the   executor  found  a  deposit   in  a  certain  "baak  to  the  credit  of  Stephen 
Pov-'ell  Burdick,    as  attorney.  ^'5,000  of  which  vras  claimed  "bj  Artliur  TT. 
Burdick  and  A.  M.  Sutton,  as  trustees;   tliat  the  "banl-c,  upon  demand,  refused 
to  pay  tie  same  to  cho  executor;  t"hat   thereafter  tire  claimants  executed  a 
certain  paper,    the  contents  of  77hich  are  given,  and  then  the  executor  vvas 
permitted  to  tske   the  money.     A  decree  v.ac  entered  settling  the   final  ac- 
co\mtE   of  the  executor,  and  finditg  that  he  had  in  his  hands,  su'bject  to 
distribution,  the  sum  of  $1,657.94.     A  decree  vas  thereupon  entered  dis- 
tributing said  money  as  community  'gvo£eTty,   one-lialf   to  Alice  H.  Burdick, 
v/idow  of  the  deceased,  and  one-half  to  Arthur  17.  Burdick,   vho  \=vas  the   sole 
legatee  of  deceased,    or,  rather,   at  the   request  of   said  Arthur  ¥.  Burdick, 
to  certain  trustees  for  his  benefit.     Appeals   are  taloen  from  V-£  decree  "by 
the  executor,  "by  Burdick  snd  Sutton  as   trustees,   and  "by  A.  \1.  Burdick  ia- 
,  dividual ly. 

But  ajspellant  contends  that  tlE  claim  of  the  v/ife  to  a  ^are  of  the 
fUcds,   as  community  property,    is  a  claim  adverse   to  the  estate,   and  that 
the  probate  court  has  no  power  to  dis  tri"bute  her  share   of  the  community 
property,   since,   as  Ix  claims ;    she  does  not   take  "by  sujcession,  "but  as 
.  survivor  of  the  cominunity.     Counsel  argne  correctly  that  the  pro"bate  court, 
in  tho  matter  of   the  administration  of  estater,  has  jurisdiction  of  the 
estates   of  dead  men,  and  can  dictrrcute  only  to  heirs,   devisees,   or  lega- 
tees,  or  to   those  claiming  through  them.     And  the  decree  of  distrihution 


368. 

is  conclusive  only  as  to  the  succession  or   testamentary  rjghtc.     Chever 
V.   Ching  Hong  Poy,   82  Cal.   68,   22  Pac.  1081.     The  prcbate  court,   therefore 
has  no   jurisdiction  or  paver  to  deal  with  the  vrLfe's  portion  of  the  com- 
reunity  property  at  all,  unless  she   tates,   upon  the  death  of  the  husband, 
as  heir.     It  could  not,  then,  dotermine  \*at   is  community  property  or 
what  is  separate  property,  am^.  could  not  authorize  a  valid  sale   of  commun- 
ity property  to  pay  debts.     The  fact  that  the  proposition  is  so  novel  and 
so  startling  raises  a  very  strong  presumption  against   it.     To  hold  v/ith 
the  appellant  would  upset  titles  all  wer  the  state.     A  proposition  more 
destructive  of  property  rights  could  not  "be  imagined.     Portimately,    it 
has  not  sufficient  plausibility   to  excite   alarm.     The  estate  of  the  v/ife 
in  the  community  property  is   a  creature  of  the  statute,  and   is,   of  course, 
just  what  the   statute  has  made   it.     It  has  always  been  pretty  much  what   it 
now  is,    thoi^gh  forraErly,  upon  the  dissolution  of  the  cottmimity  by  the  death 
of  the  v/ife,   one -half  cC  the  property/-  descended  to  her  heirs.     Even  then, 
however,   it  was  held   that   the  title  v.as   in  the  husband,   ar£.   the  vafe's 
interest  in  it  was  a  mere  expectancy.      In  Packard  v.  Arellanos,    17  Cal. 
525,    it  was  saidj      "It  is  true  the  vafe   is  a  member  of  the  community,   and 
entitled  to  an  equal  share  of  the  acquests  and  gains;  but,   so  long  as  th& 
community  exists,  her  interest  is  a  mere  expectancy,   and  possesses  none 
of  the  attributes  of  an  estate  either  at  law  or   in  equity."     The   legal 
title    to  the  community  property  is   in  the  hasband.     He  has   the  absolute 
dominion  and  control  of  it,   and  the  vrife  has  no  right   or  title   of   any  Idnd 
in  any  specific  property,  but  a  possible   interest  in  T^atever  remains 
upon  a  dissolution  of   the  community  otherwise  than  by  her  own  death.     13iis 
cannot  be  classified  as  any  species  of  estate  kaovm.  to   the  law.     Civ.   Code 
Sec.   700.     Part  4  of  the  Civil  Code   treats  of  the  acquisition  of  property, 
and  section  1000  defines  five  modes   in  \'*iich  property   is   acquired:      (1) 
occupancy;    (2)  accession;    (3)   transfer;    (4)  v/ill;   or    (5)   sixicession. 
Each  of  these  modes   is  treated  under  a  title  specifically  devoted  to  the 
subject,    laying  dova  rules  for  the  acquisition  of  property'   in  the  particu- 
lar mode  treated  of.     Uie   last  two  relate  to  the  acquisition  of  property 
from  deceased  o;aierG.     Title   6  treats  of  the  accjuisition  of  such  property 
tliroi^Sh  testamentary  disposition.     The  ne::t   is  title  7,  \7hich  treats  of 
succession*     Tlie  first  section  under  this  title   is  section  1383:      "Suc- 
cession is   the  cOiung-  in  of  another  to  ta!:e  the  proi^erty  of  one  who  dies 
vdthout  disposing  of   it  by  v;ill." 

The  learned  amici  curiae,  v5io,  by  permission,   presented  an  argument 
upon  this   subject,   argues,   from  this  section,   tliat  only  property  -.^hich 
the  deceased  o'.ner  might  liave  disposed  of  by  mil  con  be  iulierited.     But 
this  is   an  unav.chorised  addition  to  the  statute.     Property  which  belonged 
to  a  decedent ,   ..v.ich  he  could  not  dispose   of  by  \7ill,   is  property  not  dis- 
posed of  by  -..ill,   and  y.ithin  the  v.ords   of  the  statute.     Suppose  the  prev- 
iot-E  provicionr   in  regard  to  testai:»ntar/  disposition  of  property  had 
limited  the  right  to  one-half  of  a  testator's  estate,   arx".  this   section  liad 
remained  as   it  nov;  is;  v/ould  not  the  moiety,  v;hich  ho  could  not  dispose 
of  by  -will,  pass  by  succession?     Infants  aad  insane  people  die   orming 
propertjr,  and  they  cannot  errercise  the  testamentary  power.     The  section 
follows^  tie  iDrovisioas   in  resard  to  v.llls,  and  means   that  the  only  other 
made  of  coming  to  the   ©state  of  a  deceased  o\aier   is   by  succession,  and 
must  be  construed  as  applying  to   all  cases  which  the  language   is  broad 
enough   to  cover.     Section  1400  provides  that  the  preceding  soctions  as 
to  the   inheritance  of  husband  and.  \/ife  from  each  other  only  apply  to 


369. 

separate  property.     This  clearly  impliec  other  succeedicg  sections  uhicih 
apply  to  property  of  husband  aiad  wife  vJiich  is  not  their   separate  property 
Otlisrwice,   instead  of  "precedin,';;  s6ctior.E,"  the  language  would  have  "been 
"of  this   title."       The  r.e-:t  section  gives  the  entire  cociotinity  property 
to  the  husband  on  the  death  of  the  v;ife,    "\vithout   administration."     What 
was  the  necessity  of  this  provision,    "vdthout  administration,"     if   it 
does  not  go  by  ruccessicn?     The  follovving  section   (1402)  disposes  of  the 
community  property  upon  the  death  of  the  husband.     As   to   the  disposition 
of  one-half   of   it,   no  or^e  disputes  that  it  is   succession;   but  the   language 
is  the   sane   in  regaj-d  to  the  moiety  given   to  the  wife.      It  "goes"   to  her 
just  as   it   "goes"  to  the  descendants.     CPhis  sectiora  is  referred  to  in 
section  1274,   Civ.   Cede,  and   it  seems  to  be  there  expressly  determined 
that  both  husband  and  ;nfe   talx  some   interest   in  the  community  property 
by  niccession.     All  property,    "to  vhioh  heirs,  husband,  widow,   or  ne:ct  of 
ld.n  might  succeed,  may  be  disposed  of  by  vdll,   e::cept  as  otherwise  pro- 
vided in  sections  1401  and  1402."     This   is  an  e:q?resc  legislative  declara- 
tion that   the  disposition  of  the  community  property  made   in  sections  1401 
and  1402  is  succession.     Another  consideration  maltos  this  ecjaaliy  clear 
so  far  as  the   succession  of  the  wife   is  concerned.     In  section  1402   it  is 
provided  that,   upon  the  death  of   the  husband,  her  share  is  equally  cxib- 
ject  to  his  debts,    the  family  allowance,   and  the  charges  and  ea^'enses  of 
adJninistration.      In  the   Code   of  Civil  Procedure  ample     provision  is  made 
for  the  payment   of  all  these  charges  from  the   estate  of  the  deceased. 
There  is  no  provision  for  calling  upon  the  ^;idov/  to  contribute.     Estates 
composed  of  \-^at  was  community  property   in  whole   or   in  part  are  certainly 
comm6n.     If  it  had  not  been  intended  that  the  entire  community  propetty 
should  be  administered  as  estate   of  the  husband,   so  important  a  matter 
could  not  be  cvorlooked.     Yet  the  probate  laws  only  authorize   t]:e   aojttiin- 
istrator  to  tate   charge  of  tie  property  of  the  deceased   (sections   1443, 
1581),   and   the  final  settlement   of  the  accounts   of   tire   administrator  is 
conclusive  only  upon  those   interested  in  the   estate,  and   the  decree  of 
distribution  only  upon  heirs,   legatees,    or  devisees.      The  Codes  are  in 
pari  materia  and  must  be  construed  as  one.     This  plain  intent   that  the 
title  0fl  the  '.;ife   to  one-half  of  the   community/  property  shall  be  adminis- 
tered as  part  of  the   estate  of  the  husband,,    added  to  the  continuous  amd 
uniform  practice   of  near  half   a  century,  raiict  place  this  matter  beyond 
all  doubt.     Tl:e   suggestion  that  the  husband  talies  from  the  wife  her  share 
of  the  community  property/'  upon  her  death  by  succession  may  seem  inconsis- 
tent with  the  proposition  that,   during  her  life,    she  had  no  estate   of  any 
land  in  the  propert:^'-.     That  she  had  no  estate   in  the  community  property,, 
vest  ad  or  contingent,  was  held  by  this  court;  v/hen  the  law  \/as   that,  upon 
her  death,    one-half   of   the  c onmuni ty  propertjr  was   iulierited  by  her  next  of 
I:in.     Ihe  change  was  made  by  amendments  v/hich  are  codified  in  sections 
1401  and   1402,   Civ.   Code,  and  which  merely  change  the   cuccession.     It  vvas 
corcopetent  for   tlB   legislature   to  provide  the  mode   in  v.hich  the  -.•ife's 
e::pectancy  should  pass  to   the  husband.     I  t  might  have  doce  this  by  creat- 
ing a  right  by  survivorship  as  an  incident   to   the   estate,   but  it  has  done 
this  by  providing  for  a  succession.     Since  the  v.dfe  could  not   incumber  it 
or  contract  vdth  reference  to  it,  there  can  be  no  essential  difference. 

A.  17.   Btirdiol:  and  X,  II.  Sutton  as    txT:ctees,  and  A.  T7,  Burdic-:  in  his 
own  right,  h^ve  talEn  appeals  from  the  entire  decree.     Obviously,    the 
appeal  talcen  by  the  trustees  must  be  dismissed.      Tliey  are  not  named  in 
the  will  and  claim  no  rights  under  it,   and  have  presented  no  claim  against 


I 


370. 

the  estate.     They  are  not,  and  could  not  have  been,   aggrieved  persons, 
Tho  order  refusing  to  postpone  the  decree  of  firal  distribution  v/as  not 
appealable.     Th3  ajjplication  was   to  "puspend  the  order  of  final  distribu- 
tion," because  it  wa.^  oTaimed  that   the  money  belonged   to  a   trust  fund. 
A.  W.  Burdick,   as  legatfrie  under  the  will  of  Steven  Po-.vell  Burdick,  had  no 
interest  in  such  a  contention,  and,   as  legatee,  was  not   injured.     As 
trustee  he  cannot  be  heard  here.     Tho  court   found  the  money  in  tie  h?.nds 
of  the  executor  to  be   coitmunity  propcrt^r,   end   distributed  it  accord5.r^iy. 
There  is  no  evidence  in  the  record  which  tends  to  show  that  the  f  indiug 
of  the  court  was  erroneous,  anl   the  bill  does  not  chow  that  it  contains 
all  the  evidence  which  was  before  the  probate  court. 

The  appeal  at  the  tru.stess  is  dismissed,  and  as   to  the  other  appel- 
lants- the   decree   is   affirmed. 

We  concur:     ItoParland,  J.;  Van  Fleet,  J.;  Eenshav;,  J. 

Harrison,  J.    (concurring).     The  v'ife*s   interest  in  the  community 
property  upon  the  death  of  the  husband  has  many  incidents  similar   to  those 
of  aa  heir,  but  I  do  not  thinlc  that,  under  ihp.  language  fend  spirit  of  the 
la  .f  of  this  state,  she  can  be  said    to  be  his  heir   to  her  share  of  that 
■property,  or   that  her  interest  thijreiu  comes  to  her  by  virtue   of  a"euc- 
cession"   to  the  property  of  lisr  husband.     T  ha  property  that  is  acquired 
by  the  labor  of    Uie  vdfe  during  the  marriage,   equally  \\lth   that  acquired 
by  the  labor  of   the  hUFiband,  becomes  cmmuuitj'-  property;  and,   although 
section  172,  Civ-  €ode,  gives  to   tho  husbaixl  the  manager.ent  ard.  control 
of  the  community  property, — tha.t  acquired  oy  her  labor  as  well  as  that 
acquired  by  his, — yet  by  tho   terms  of  tha  sane   section  he   cannot   give 
away,  or  convey  v.ithout  valuable  consideration,  any  portion  of  this  prop- 
erty, unless  she  gives  her  \.'rit  ten  consent  thoreto.     V/hile  a  voluntary 
or  fraudulent  convejrance  is  binding  upon  his  heirs,    and,   in  the  absence 
of  creditors,  cannot  be  questioned  by  the  administrator  of  his    estate,  yet 
he  cannot  by  such  act  deprive  the  vifo  of  her  share  of  the  community  prop- 
erty.    Only  oneOhalf  of  the  community  property  is   subject  to  the   testa- 
mentary disposition  of  the  husband,  and,  if    the  bonds  of  their  carriage 
are  dissolved  by  a  judicial  decree  which  mates  no  mention  of  property, 
the  wife  becomes  the   absojute  ovjner  of   one-half  thereof,  as  co-tenant 
with  the  husb.  nd.     De  Gode:/  v.   Godey,   39  Cal.   157.      it  was  said   in  this 
case:      "The  theory  upon  .vhAch  the  right  of   the  v-.ife  is   founded  is  that 
the  common  property  ^vas  acquired,  by  tli?   joint  efforts  of  the  husband  and 
VTife,  aid.   should  be  divided  betv.'een  them  if  the  marriage  tie  is  dissolved 
either  by  the  death  of  Sae  hucbv.rd  or  by  the  decree  of   Ihe   court.     Her 
mere  ri^t  in  the   corriaunity  property  is    as  well  defined  end  ascertained 
in  contemplation  of   lav,   even  during  the  marriage,   as  is   tlia-t  of  the  hus- 
band.    It   is    true  that  the  lav.-  confers  upon   tie   latter    the  authority  to 
msjiage  amd  control  it  during  the  e::istence  of   the  marriage,  and   the  pow- 
er to  sell  it  for   the  benefit  of    the  coramunitty,  but  not,   as  mq  have  seen, 
so  as  to  defraud  the  conirLiunity  of  it.     In  the  case  at  bar,   then,   the  right 
of  the  respondent   to  share  of  Gie  property  in  question,   if   it  be  proven 
to  be  community  property,   is  clear.     It  accrued  to  her  as  having  been  ac- 
quired in  part  by  h^r  o^n  efforts  before  the  decree  of  divorce  wa-  ren- 
dered.    That  deci-ee,  at  renc-Grec.,  did  not  deprive  lier  of   it."     .Although 
this  interest  of   tiie  wife   in  the   community  Property  may  not   fall  \/ithin 
the  common-lav/  definition  of  an  "'estate,-'  it  is  not   to  be  classes  as  a 


371. 

"mere  possibility,"  liTce  tho  exivectancy  of  aa  heir.     It  is   true  that,   in 
Van  I.lGren  v.  Jolinnon,   15  Cal.   511,   it   vra.s,   by  v/ay  of    illustration,    terrii- 
ed  a  "mere  eicpectancy,"  and  this   illustration  was  again  used  in  Pacterd 
V.  Arollanes,    17  Cal.   5£5;   but,  as  was   said   in  Do  Godey  v.   Godey,    sui^^ra: 
"V/hile,   poi-haps,   no  other  technical  designation  would   so  nearly  define 
its  character,   it   is  at  the   same  time  an  interest  so  vested  in  her  as 
that    the  husband  caunot   deprive  her  of  it  by  his  will,  nor  voluntarily 
alienate   it  for   tlis  mere  purpose  of  divesting  her  of  her  claims  to   it." 
That  her  interest    in   tiie  communitj''  property  is  more  than  a  mere  possibil- 
ity is   p.lso   sliovn  by  section  167,    Civ,    Code,   by  v/hich  the   corenuiiity  prop- 
ertyis  exempted  from  liability  from  the   contracts  ofthevife  m?de  after 
marriage;  but  it  is  not  e::empt,  by  the  Code,  from  liability  for  her  con- 
tracts made  before  uerriage. 

It  is  a  misapplication  of  terras  to   sa*/  that   the  property  -.'hich  the 
wife  has   "acqviired,"  during  the  marriage,  by  her  siiill  or  labor,   and  of 
which  her  husbpoad  had  not    in  his  lifetime  any  pov;er  of  voluntary  convey- 
ance,  e;:cept  vdth  her  consent,  or  of  testamentary  disposition,   is   inherit- 
ed from  him;   and  to  refer  her  rights   in  the   oomraunity  property  to  "succes- 
sion," undei-   the    laiguage  of  section  1565,   Civ.   Code,  begs  the  entire 
question.     "Succession,"  by  the  terms   of  that  section,  can.  be  applied  only 
to  a  case  where  the  property  succeei.ed   to  "belonged  to    the  decedent,  where- 
as the   entire  provisions  of  the  Civil  Code  are  at  variance  with  treating 
the  husband  as  the  owner  of  the  C0i:rm\inity  property.     If  he  were  the   ov.xier, 
he  vjould  have  the  absolute  dominion  over   itV  ^'Ith  the   right  to  M^  it   or 
dispose  of  it  according  to  his  pleasure    (Civ.  Code,  Sec.  679);   but,  as 
above  seen,   these  attributes  of  ovTaership  are  denied  him.     Section  682, 
Civ.  Code,   specifiss  the  community  interest  of  husband  and  -.Ife  as  nne 
species  of  property  .  hich  is  owned  by  several  ^.^rsons.     The  necessary 
implication  therefrom  is  that  the  husband  and    the  wife  are  the  "several 
persons"  in  whom  is  vested   this   O'-Tiership  of  Gie  community  property.     This 
ownership  is   not  absolute  in  either,  but  in  each  of  them  is  qualified  by 
reason  of  its  being  shared  -.ith  the  other.     Civ.  Code,  Sec.   660.     This  in- 
terest of    Gie   surviving  '.4  fe  in  the  coiniuunity  property,   instead  of  being 
adverse  to  the  administrator  cf    the  estate  of  her  husbend,    is   subordinate 
thereto  for   all  purposes  of  adinini  strati  on,  ard   is  subject  to  the   super- 
vision and  control  of  the   court   in  ■..'hich  the   adninistraticu  is  pending. 
By  section  1452,   Code  Civ.  Proc,   tlx  er.ecutor  or  administrator   is    en- 
titled to  the  pOEsessiou  of   all  the  reel  and  personal  estate  cEf  the  de- 
cedent,   aid  to  receive  the  rents  snd  profits  cf   the  re^l  estate  dvjring   tj-je 
administration;  and   section  14-02,   Civ.  Code,  declares:      "In  case  of  the 
dissolution  of  ths  ccramunity  by  the  death  of  ttie  husband,  the  entire  com- 
munity property  is   equally  subject  to  his  debts,    the  fa..u.ly  allo-v.'ance, 
and  the  charges  end   expenses  of  adainistrrtion."     Theller  v.  Such,    57  Cal. 
347,  ard  hindred  cases  have,  therefore,   no  application,  as  the  proper t:y. 
involved  in  those  cases  -.-as  held  not  to  be  t-ubject  to  the  adoninistration 
or  to  the  debts  of  the  decedent.     The  husband  hes  the   sole  manage/.ient  and 
control  of  the  coiBi:iunity  property  in  his  lifetime,  and  alone  can  render 
that  property  chargeable  '-dth  debts.     Upon  his  d.eath  tls  entire  ccmunity 
property,   as  •.;ell  as  his    separ3te  property,   is    subject   to  the  control  of 
the  cour^  for   the  purposes  of  administration  of  his  estate,   and  is   tal<en 
into  th^  possession  and.  management   of  his,  adiiiinistrator  for  the^e  purposes 
and  at  f^he  close  of  the   auiainisti*ation  tlie  wife  receives,   at  the  hand  of 
the  court,   in  the  same  manner  and  at  the   same  time  as  does  the  heir,  her    -, 


6-t 


t/^-c-^r        ^»^^ 


^^ 


i=?    _,e«X'-£Zj> 


^;^^*'2S'-<2d:y         C7-^       ^ 


'./^^■' 


y^^^y^    ,        X/^ 


372. 

sharo  of  the  community  :,'roperty, — the  one-lialf  of  the  suri'luG  after  pay- 
ing-  tl?e  debts  and  ei'.jenscs  of  odmaist.atiou.     She  rocoivec   it,  ho->70/er, 
not  as  the  heir  of  her  husband,  but  in  her  o  .n  ris'nt,  ac  her  half  of  the 
property  vvhich  wat,  acquired  by  herself  and  her  hucbojid  during  the  uarriaG'S 
but  freed  from  all  restrictions  in  its  use  and  enjoyment,   and  vdth  the 
sajTie  title  as   if  tho  marriage  had  been  dissolved  by  a  decroe  of  divorce. 

As  the  court  ^.hich  had  control  of    the  at'ininiGtration,  ard  of   the  com- 
munity property  for  that  purpose,  is  also  authorized  to  deteriTiine  \hc.t 
charges,  debts,   and   eripensec  are  to  be  paid  out   of   this  property,  and  the 
amount  thereof,   it  must   folio,/  that  the  jud:yiient  of  that  court,  detormin- 
ins  tho  amount  of  t  he  property  \/hich  she  is  entitled  to  receive  at  the 
close  of  the  aCjninistration,   is  biix'.ing  upon  her,  ani  may  al^o  be  invoked 
by  her  as  a  deterniUi:-tioii  of  her  ri^ht  to  the  some.     V.hetlier   this  be  call- 
ed a  decree  of  distribution,   or  a  judyrent   or  order  fii:ins  the  amount  or 
e::tent   of  her  interest   in  the  estate  ard  her  riaJit  to  redeive  the  same 
from  the  administrator,   is  immaterial.     I  t  is    tiie  final  determination  of 
the  court  upon  a  subject  v/ithin  its  jurisdiction,  and  is   as  binding-  upon 
her  as  if  she  had  been  specifically  named  in  section  1666,  Code  Civ.  iroc. 
If  a  court  has  jurisdiction  to   talce  the  management  aid  control  of  property, 
ani  to  determine  the  amount  of  charges  thereon,  and  direct   their  pa:^'nent 
out  of  tho  property,   and  return  the  surplus  to  the  parties  entitled  there- 
to,  its  judgment    in  determining  the  amount  of  such  suvpluc,   and  desi£-nat- 
ing  the  persons  to  v.'hom  it   is  to  be  given,   is  necessarily  conclusive  upon 
,  thou;   and  they  tafe   their  portions  of  the   surplus  under  and  by  virtue  of 
the  judgment,  amd  not  adversely  thereto. 

Upon  the  other  qtiestions  discussed  by  Ilr.  Justice  Temple  in  his 
opinion  I  concur  \,ith  him,  and  I  al^o  concur  in  the  judgment. 

I  concur;     Garoutte»  J» 


a-.-h 


37^ 


BOTT  "7,  NOTT  et  al . 

(Ill  La.  1028) 
(36  S.  Rei^.   109) 

Sui^reme  Court  of  Louisiana.  Fet.   29,    1904. 

Appeal  from  Tweavv-P  ifth  Judicial  District  Court,  Parish  of  Tagipahc 
Rotert  R.  Re id.   Judge. 

__Action_ty  Ilax-y  E.  Hott  a,^aiuEt  Samuel  Hott  and  others.     Judcnent  for 
plaintiff,    aasd  defendants  appeal.    lleversetT; 

Land,   J.     This  is  a  suit  for  separation  of  proi;erty,   for   the  recovery 
of  the  sum  of  0^,000  alleged  paraphernal  funds  of    the  \afe  received  and 
converted  ty  her  hustand,   for  recognition  of   her   separate  ovmerchip  of 
certain  described  real  estate,    and  for  tine  arjiulment,  as  a  fraudulent  sim- 
ulation, of  certain  sales  of  ccmmunity  property  by  the  husband. 

An  injxmction  v.2.s   sued  out  inhibiting  and  restraining  hira  fro.Ti  dis- 
posing of  the  prOi-erty  described    in  the  petition  until  the  further  orders 
of  the  court. 

The  petition  alleges  that   the  mp.rriage  toolc  place  at  Honolulu,    Island 
of  Oaliu,  Hawaiian  Islands,   in  December,   ISfiS,   and  that  plaintiff's  sepa- 
rate property  in  said  Sslard   of  Oahu,   acquired  by  purchase  and    inheritance, 
was  sold  in  October,   1895,   for  the   sum  of  ^4,000,  which  was  received  acd 
Used  by  her  husband. 

The  petition  further  alleges   that   in  December,   1900,   Samuel  ITott 
made   simulated  and  fraudulent  sales  to  his   son,  Robert  H.  Hott,   of  certain 
described  real  estate  belonging  to   the  coinnunity,   consisting-  of  lands  and 
lots   situated  in  the  parish  of  Tangipahoa  ani  in   the   state  of  California. 

The'  petition  further  alleges    that  certain  described   tracts  and  par- 
cels of  real  estate  situated   in  Iho  island  of   Pahu  and    in  the   state  of 
California,   aAd  50  shares  of   1he  Pacific  Hardware  Company  of  Honolulu,   are 
the  separate  property  of  the  petitioner. 

The  petition  alleges  the  insolvency  of  Samuel  ITott,   to  the  taiowledge 
of  Robert  Hi  Nott  at   the  time  of   said  simulated  and  fraudulent   sales. 

A  default  was  taken  against  both  defendants,  and  Samuel  Hott  alone 
appeared  and  has  ansv/erod,    e:ccepting  at   the   same   time  to  the  jurisdiction 
of  the   court  to  pass  on  the  rights  of  property  situated   in  other  states 
and  out  of  the   state  of  Louisiana. 

His  ansv/er  is  as  follov/s: 

"Defendant  for  ansver  ddmits  his  marriage  with  plaintiff,    and   spg&ial-- 
iy  denies  each  and  every  other  allegation  in  plaintiff  »s  pet ittion.     Spec- 
ially denies   that  plaintiff  ever  ovmed  any  separate  property,  but,    should 


374. 

it  be  decided  that  iJlaintiff  is  the  ova.er  of  the  property  declared  on 
exhibit  "B"   to  her  vjetition,    then  th.is  defendant  avers  that  ho  had 
valuable  improvements  'jloc-ed  on  said  la^id,   cocting  four  thousacd  dollars, 
and  the  saJTie  enhanced   irhe  value  thereof  to  that  e:ctent.     Specially  denies 
that  plaintiff  owns  separate .property  in  this  parish,   and  avers,   and  so 
the  facts  are,   that  v/hilo  the  title  to  the  property  described  in  plain- 
tiff* s  petition  and  Echi.tit  P  is  in  plaintiffs  narae,   the  same  v/as  paid 
for  with  the  defeJidart'^G  separate  funds,  as  ;vas  also  all  the  property  in 
Tangipahoa  parish   in  eii^her  plaintiff's  or  defendant's  name;    ane,    should 
it  be  decided  that  the  property  in  your  parish  is  community  property  be- 
tween the  plaijntiff  anr?.  this  defendont,  then  this  defendant  ic   entitled 
to  be  roirabur3ed  out  of  said  community  the  purchase  price  of   imi:>rovements 
thereon,  amounting  to  Oc-,000  or  more." 

Defendant  prayed  that  plaintiff's  suit  be  dismissed,   but   should  it 
be  decreed  that  plaintiff  is  entitled  to  judgment  as  claimed  ''.j  her,  and 
that  the  property  in  sc  id  parish  belonged  to    the   coimiujiity,  defendant 
then  prayed  for  judgment  against  the  community  in  the  sum  of  '^7,000,   and 
such  further  sums  as  mcy  be  found  due. 

On  the  day  fi::ed  for  the  trial  of  the  cause,   the  case  v/as  talsn  up, 
and  plaintiff  offered  the  dispositions  of  \7.    0.  Smith  ard  Lorrin  A.   Biurs- 
ton,   of  the  ^sland  of  Oahu,  taJcen  under  commission. 

These  depositions  v;ere  ruled  out  on  objection  of  defendant |s  counsel 
that   the  commission  \.'as  executed  Sfter  the  return  day. 

Thereupon  the  case  v.-as  continued,   the  defendant  urging  no  objections* 

The  depositions  of  said  vatnesses  were  taken  de  novo,  and  filed  in 
evidence  on  the   trial  of  the  cause. 

The  defendant  offered  no  evidence. 

The  district  judge  rendered  jusgment   in  favor  of  plaintiff,  decreeing 
a  separation  of  property,  condemning  defendant  to  pa^''  the  sum  of  0^,000, 
with  legal  interest   from  judicial  demr.nd,   recognising  plaintiff  as  the 
ov/ner  of  certain  real  estate  situated  in  the  parish  of  Tangipahoa,   a:inul- 
ling  as  simulated  and  I'raudulent  the  sale  of  certain  real   estate  situated 
in  the  parish  of  Tangipahoa,  maintaining  end  perpetuating  the  injunction 
as  to  the  sale  of  said  property,   aid  recognizing  plaintiff's  community 
interest  therein.     The  injunction  as  to  lands  and  property  vathout  this 
state  was  sissolvedi 

Defendants  appealed,     Uo  prayer  for  amendment  of  judgment  has  been 
made  in  this  court  by  plaintiff  ard  appellee. 

On  the  contrary,  her  counsel  in  their  brief  ask  "that   the  judgment  of 
the  district  court  be  affirmed,     .'ith  costs."     Hence  the   status  of    Ihe 
property  situated  outside  of  Louisiana,   and  claimed  by  plaintiff  as  sep- 
arate and  community,   is  eliminated  from  consideration.     Code  Prac.   art. 
888,  note  A,   by  Garland. 

The  first  contention  tS  defen?.ants  is  that   the  property  in  Honolulu 


375, 

purchased  in  tl^e  nare  of  Ilrs,  Hott   in  1Q70,   and  sold  by  her  in  1695  for 
^000,  belonged  to  the  canraunity.     Thic  contention  rests,    first,   on  the 
proposition  that   tlie   lav/s  of  Honolulji  have  not  been  proved  as  a  fact,   and 
therefore  must  be  presumed  to  be  the  seme  as  the   lai7s  of  Louisiana;  aad, 
secondly,   on  the  assumption  tiiat   the  evidence  does  not   Bho^v  that  tho  said 
purchase  wat  made  witli  the  vife*6  paraphema;   funds  under  her  separate 
administration. 

The  depositions  of  larrin  A.   Thurston  and  W.  0.  Smith^p  two  lavyers 
residing  in  Honolulu,  v/ere  taken,  as  already  stated,  but   they  './ere  not 
asked  any  specific  questions  as  to  the  lav.'c  regulating;  the  ri.:3hts  of 
married  v.omen  in  force  in  that  place.     Both  testify,  hov/ever,   that   the 
property  was  the  •wifo*s  separate  property.     The  evidence  shows  that  the 
'Property  belong-ed  to   the  estate  of  Larrin  Jjodrev/e,   the  father  of  plaintiff, 
v/ho  inherited  an  interest  therein,   and  acquired  by  purchase  the  interest 
of  her  coheirs,  her  mother  inteiToninG,'  ahd  releasing  her  rights  of  dov/er 
in  ^avor  of  plaintiff.     Hence  the  property  cannot  in  any  event  bo  consider- 
ed as  community,  e::cept  as  to  the  interact  of  the  ciiheirs  acquired  by  pur- 
chase.    The  price  paid  them  is  stated  in  the  deed  to  have  b^en  $500.     There 
is  no  satisfactory  evidence  in  the  record  showing  how  plaintiff  scquired 
this  money,   if,   in  fact,  any  money  was  paid.     Smith  states  in  a  general 
way  that  the;  money  diid  not  belong  to   the  husbaiid,  but  his  testimony  on 
this  point  is  vague  and  not   satisfactory. 

Hie  tranaaction  v/as  in  the  name  of  the  vafo,  made  with  her  coheirs 
and  mother,  and   the  property  belonged  to  the  estate  of  the  father.     The 
evidence  d-oes  not  sho\;  the  e::tont   of  the  interest  of   tho  plaintiff  as  heir 
in  the  property,   or  of  the  dower  interest   of  tlae  mother.     The  estate  was 
evidently  partitioned  in  some  way  among  the  heirs,  as  Thurston  refers  to 
other  property  in  Honolulu  acquired  by  plaintiff  as  heir  and  by  conveyance 
from  coheirs  and  the  surviving  widov/.     In  1874  this  property  was  conveyed 
by  plaintiff  aad  her  husband  to  one  Pillingham  in  trust  for   tho   sole  use 
and  benefit  of  the  ^vife  anc.  her  hoirs.     It  was  reconveyetl  by  the   trustee 
to  plaintiff  in  1674,  and  in  1895  sold  by  her  "in  her  o.m  right"  for 
v4,000,   the  husband  receiving  the  proceeds. 

It  being  apparent  that  the  wife  had  some  interest  in  the  property  as 
heir,   and  it  being  probable  that  the  purchase  in  1870  v/as  connected  with 
the  settlement  of  her  fatlier's  estate,  and  the  defendant  husband  having 
^■olaed   in  the  trust  deed  viaich  recognized  the  right  of   the  plaintiff  to 
the  i^roperty  and  its  proceeds,  we  thiulc  that   justice  demands  that   this 
cause  be  remanded  -for  further  evidence  and  procdodings  accorcing  to  laau 
TShile   there  is  no  direct  evidence  as  to  the  laws  of  Honolulu  relative  to 
estates,  rights  of  mairied  v.r»m6n,   effect  of  trust  deeds,  et«.,   the   two 
attorneys  at  la:.-  already  mentioned  testify  that    the  property  \.-as  the  sep- 
arate property  of  the  wife. 

Prom  their  ansv/ers  we  deduce  the   inference  that  this  was  their  opinion 
founded  on  the  fact  tlvit   the  deed  showed  that   the  plaintiff  acquired  by 
purcha  se . 

The  status  of  the  property  in  Honolulu  acquired  in  1868  must  be  de- 
termined bjr  the  lav/s  of  the   situs.     The  cornmunitjr  laws  of  Louisiana  do 
not  operate  on  real  estate  in  another  state  or  in  a  foreign  cotuitry. 


376. 

Heirs  V.  Murdock,  41  La.  Ann  496,    6  South,   131. 

V/a  note  the  state.Ticr  h ,   in  the   ci:.e:?  of  counsel  for  dafeudant,  that 
"the  property  Sir^jtly  dTLoribod  in  t:ie  judsnent  and  decreed  plaintiff's 
separate  property  is  no":  ahov/-a  "by  any  proof  to  have  "belonged  60  eithei* 
plaintiff  or   deionda;!^."     J,f  defendant  has  no  title  to  the  property,  he 
has  no  right   to  cciTripr.ain.     This,  however,   ic  a  matter  that  can  te  eluci- 
dated on  another   tricvi  ^ 


It  ic   th£refoj-e  ci-^ired,  adjnd^^-od,  and  decreed  thgt    the  jndgment 
appealed  froin  "-le  c:!..d.n.~.'i!'.f   avoided,  and  reversed,  and  this  case  he  re- 
manded to  thfe  (?i3-L-rint  r^.ourt  for  further  ]oroceedinss  according  to  lav./; 
plaintiff  and  npp3li<?y   :;o  pay  the  costs  of  appeal. 


377. 


G2Ni;\aSVE  SCHTILTS,  Appell?xit  v.    OSCiJl  CI-IRIGTCS^KEIR, 

{65  V/ach,  4S6,   1911) 

Appeal  from  a  j'jclf^ment  of  the  superior  court  for  iring  county.   Tall- 
man,  J.,    etitcved  ?'.-. tot '..•:•,   21,    1910,   n-jjo-Q   n- r. t M  n 7 ng  a  demurrer  to  the 
c on-plain-!:,  dir.-.ii'; '.^.ly;  :■..;  action  f 0  r  rlnma^-gs  o     Af firmer!, 

Dui-'DGJ-^  C»  S.-~'^:3  complaint  of  tho  plaintiff  and  appelland  alleges 
that   sha  vs.s  mr.ir'.ec.  to  the  respondent  on  the  7th  day  of  October,   1906, 
aiid  sustained  -'±0  r?lat;".ou  of  -.dfo  tov/ardc  him  until  the  2d  day  of  Jan- 
iiarj',   1909,  when  she  was  given  an  absolute  decree  of  divorce  by  the   sup- 
erior court  of  Ein,^  county.     It  is  further  alleged  that,  at  tho  time  of 
tho  marriage  of   the  ai-peLlant  ind  respondent,   respondent  v/as  afflicted 
vath  a  malignajit  venereal  disease,  and,  v/ithin  the  course  of  t-.vo  weeks 
from  the  date  of  t]ie  rrarriage,   comraunicated  said  disease  to  the  appellant, 
and  as  a  result   theraof ,   she  suffered  and.  sustained  great  cental  anguish 
and  physical  pain  aid  sui'fering,   rendering  her  incapable  of  performing 
any  labor,   and  necessitating  a  serious   sxjrgical  operation  in  an  effort  to 
regain  her  health  and  strength;  and  that,  by  reason  of  the  act  of  the  de- 
fendant  in  ■'.'ilfully  coiimanicating  said  disease  to  her,   she  has  been  dam- 
aged in  the  sum  of  $15,000.  To  this  complaint  a  demurrer  was  interposed, 
which  was  sustained  by  the  lo^vor  court.     Tlie  app'ellant  refusing  to  amend 
her  complaint.   Judgment  v/as  entered,  dismissing  the  action,  and  from  the 
judgircnt   so  entered,   this  appeal  is   taken. 

From  this   statement  it  vd.ll  be  seen  that  the  onl^'   question  involved 
is  whether  a  v;ife  can  cue   a  husband  for  a  tott  committed  upon  her  person. 
It  is   conceded  that  at  common  lav;  no  such  right  o::isted.     At  the  common 
lav;  there  v;as  a  unity  betv.-een  husb.nd  and  wife,  and   it  must  be  admitted 
that,  for  all  pracKical  purposes,  the  husb^.nd  was  the  unit.     The  legal 
ri^ts  of  the   vdf  e  v;ere  merged  in   tlie  hnsband,  and  v;ere  subject  to  the 
direction  and  control  of  tlis  husbc^oid,  but  neither  husband  nor  vlfe  could 
sue  the  other.     But  time  and  e::perience  and  just  observation  v;orked  a 
mental  emancipation  from  tl'3  feudal  ideas  which  tinged  the  common  lav;  con- 
cerning domestic  relations,    end  a  more  progressive  policy  has  dictated  to 
the  different   states  ttie  enactment   of  lav;s  loolring  to  tho  emancipation  of 
women  from  the  thralldom  of  the  common  lav;,     Ilany  statutes  in  different 
states,   differing  in  the   scope  of  the  enactments,  to.ve  [feeen  passed,    and 
of  covirse  they  have  to   be  construed  v.ith  roferenco  to  their  especial  provi- 
sions.    Many  cases  are  cited  by  the  respondent,  to   the  effect  tliat  a  woman 
cannot  maintain  an  action  for  tort  against  her  fomer  husband  on  account  r 
a  wrong  committed  during  coveture.     Bpt  as  the  appellant  concedes  this  to 
be  tho  lav;  in  the  absence  o£  statute,   ii,  is  not  necessar-'  to  discuss  them; 
for  if  the  plaintiff  in  this  case  ha-r.  a  right   to  the  remedy  vhich  she 
invoSres,   it  must  be  found  in.  the  statute,     ihe   statute  upon  \'/nich  appellaii- 
relies   is  Rem,  u  Bal.  Code,   Sec.   5926,  v;hich  is  as  follows: 

".'^11  lav.'E  v;hich  impose  or  recognize  civil  disabilities  upon  a  v;ife, 
v;hich  are  not  imposed  or  recognized  as  ei^isting  as  to  the  husband,   are 
hereby  abolished,   and  for  any  unjust  usurpation  of  her  natural  or  property 


378, 

rights   she  shall  have  the  feame  right    to  appeal   in  hor  ov.n   individual 
name  to  the  court  of  lav/  or  equity  for  redrcBS  and  protection  that  the 
hushand  has ;    .     .      . " 

It   is  difficult  to  find  any  support  for  appellant's  contention  in 
this    statute.     Courts  must  consfe-r.e  statutes  v/ith  a  view  to  effectur.te 
the  legislative  purpose;   or,    in  other  words,    the  spirit  and  reason  of  th& 
lav/  vhich  necessarily  includes   the  remedy.     V.hat  was  the  legislative  ob- 
ject tin  this  enactment?     Evidently  it  \/as  to  plads  the  vdfe  and  husband 
lypon  the  same  footing  So  far  as  their   legal  rights  v/ere  concerned,  and 
this  is   set  forth  so  plainly  in  the  statute  that  it   is   scarcely  suscept* 
ible  of  construction.     It  v/ill  lie  noted  that  the   statute  does  not   intend 
to  em^ancipate   the  v/ife  from  all  civil  dj.sabilities ,  but   the  express  lan- 
feua£>e   is   that  all  civil  disabilities  r/hich  are  not  imposed  or  recognized 
as  existing  as  to  the  husb?ud  are  abolished,   and  that  for  any  usurpation 
of  her  natural  or  property  rights,   she   shall  have  the  same   right   to  appeal 
and  the  seme  protection  and  redress  that   the  husband  has.     The  only  object 
that   the  statute  had  was  the  commendable  one  of  abolishing  the  tyranhy  of 
sex,  and  the  placing  of  the  husband  and  v/ife  upon  an  equal  footing.     It 
does  not  go  further  than  this,   and  when  it  is  conceded  that   the  hu-sband 
has  not  the  right  under  this  statute,    and  did  not  have  at  common  lav.',   to 
sue  the  -wife  for  a  tort,   it   is  plain   that  no  such  right   i?   conferred  upon 
the  wife. 

There   is   no  case   that  \:e  have  been  able  to  find,   or  any  authority, 
sustaining  appellant fs  viev/  under  statutes  similar  to  the  one  under  con-   ■ 
strudtion.     lit  v,us  decided  by  the   supreme  court  of    the   United  States   in 
Thompson  v.   Tiiompson,    213  U.  S.   611,   that  a  wife  did  not  have  the  right 
to  sue  a  husband  for   an  assault  and  battery  conmitted  upon  her  person  by 
her  husband.     The  cotcrt  was  construing  a  statute  governing  the  District 
of  Columbia.     Tliat    statute  -was  more  favora'ple  to  appellant^  contention 
and  more  sweeping  in  its  provisions   than  the  statute  under  consideration, 
and  was  as  follows: 

"Harried  women  shall  have  po^er  to  engage  in  any  "business,  and  to 
contract,  whether  engaged  in  business  or  not,  and  to  sue  separately  upon 
their  contracts,   and  also   to  sue  separately  for  the  recovery,   security  or 
protection  fif  their  property,   and   for   tctts  committed  against   them,   as 
fully  and  freely  as   if  they  were  unmarried;   contracts  may  also  be  made 
With  them,    and  they  may  also  be  sued  separately  upon  their  contracts, 
v/hether  made  before  or  during  marriage,  and  for  v/rongs   independent   of 
contract  committed  by  them  before  or  during  their  marriage,  as  fully  as 
if  they  v/ere  unmarried,    jnd  upon  judgments  recovered  against   them  execut- 
ion may  be  issued  as   if  they  were  xinmarried,"  etc. 

So  that   it  v/ill   be  seen  that   it  especially  provided  that  married 
women  mi^t   si:e  for   torts   committed,  against   the,   as  fully  and  freely  as 
if  they  \fere  unmarried,    and  this  vTas   the  special  provision  of  the   statute 
upon  which  the  dissenting  ox^^inion  of  Judge  Harlan,   largely  quoted  by  ap- 
pellant in  favor  of  her  view  of    the  lav?,   v/as  based.     An  examination  erf 
the  dissenting  opinion  leads  us   to   ccnrlule  v.l  th  certainty  that,  had  it 
not  been  for  this   special  provision,  the   learned  judge  v/ould  not  have 
felt  called  upon  to  dissent  from  the  majority  opinion* 


..^C-i^^.*^  J 


w^       -^       .^7 


r. 


579. 

The  apijellant  also  cites  come  cases  from  this  court  \'!-iich  it  ic    ., 
thought  bear  upon  this  proposition.     But  an  e::cjnination  of   them  chov/s 
tliat  the  idea  of  the  stattte  was  construed  to  be  as  v;e  have  indicated, 
viz.,   to  place  the  husband  and  v;ife  upon  the  same  legal  footing;  and   in 
none  of   them  can  it  be  gathered  that  liny  attempt  was  jrade  to  sxve  the 
wife  rights  against  the  husband  vMch  the  husbanddid  not  possess  against 
the  wife.     In  Rosencrantz  v.   T  erritory,   2  'Vash.  Ter  267,   274,   5  tac. 
305,   tiiis  idea  is  plainly  announced  in  the  follovdng  quotation: 

"To  us  it   seems  that  the  delation  bet'./een  husband  md  vife  thereby 
established  TsraB   (with  certain  exceptinns  therein  stated)   one  of  absolute 
equality  before  the   lav/.     As  it  not  only  in  oxprese  terms  gives  to  her 
the  same  rights   to  hold  propertjr  as  her  husbsmd,  but   in  section  three  of 
said  act  e.rpressly  abolishes  all  civil  disabilities   irrsposed  on  her  by  the 
marriage  relation,   \.'hich  v;ere  not  imposed  or  recognized  as  e::i sting  as 
to  the  husband}      .      ,      ." 

There  may  be  reasone-vhy  a  husband  or  vafe  should  have  the  right  to 
sue  the  other  for  dcroages  for  torts  of  this  kind.     If  so,   such  rights 
must  be  conferred  by  legislative  authority. 

There  is  another  conclusive  reason  vhy  this  demurrer  should  have 
been  sustained.     This  damage  v;as  the  result  of  a  tort  during  coverture. 
The  parties  have  since  been  divorced  >iy  the  decree  of  the   court.     The 
presumption  must  obtain  that  all  their  rights  were  determined  in  the 
divorce  proceeding,  ani  if  this   stafee  of  facts  existed  as  alleged  by  tne 
complaint,    it  ivas  a  proper  subject  of  investigation  by  tlie  court  in  de- 
termining the  distribution  of  property.     .It was  said  by  this  court  in 
V/ebster  v.  V/ebster*   2  V/ash.  417,  26  Pac.  864,   that   the  court  had  a  right 
to  nake  a  division  of  all  the  property,   joint  end  separate,    in  any  way 
that  seemed  in  its  discretion  jUst  and  equitable.     The  language  of  the 
court  v.'as: 

"Sach  pcrty  must  lay  dovn  before  the  chancellor  all  tliat  he  or  she 
has,  and,  after  an  e;-:amlnation  into  the  \,hole  case,  "he  makes  an  equitable 
division     .      .      .     each  case  must   be  adjusted  according  to   its  ovn  merits 
and  the  particular  circumstances  CUrrounding  it,   the  court   investigates 
all  the  circumstances— (1)   as  to  v/ho  is  to  blame,  or,   if  neither  party 
is  blameless,   the  degree  of  blame  to  be  attached  to  the  respective  parties; 
(2)   v.tLO  is   the  more  properparty  for  the  custody  of  the  mmnor  children, 
if  any;    (3)   if  there  is  a  disposition  of    tl-Ji  property  to  be  mide,  the 
manner  in  viiich  it  v.'as  acquired,  whether  derived  principally  from  tb3 
husband   or  v/ife,   or  by  their  joint  eriertions;   the   conditions   of  the  part- 
ies as  to  age  and  health,  and  f.  great  maiy  considerations  which  will 
necessarily  enter  into   the  discretion  fif   tlie  court  in  itaking  the  division." 

So  tliat   it  vlll  be  seen  that  the  condition  of  the  appellant,   flovang 
from  the  alleged  tort,  v/as  a  matter  to  be   taken  into  consideration,  and 
the  presumption  is    that   it  was  taken  into  consideration  by  the   court  in 
the  distribution  of  the  property  made  in  the  decree   of  divorce.      It  v/ould 
be  against  i^ublic  policy   to  permit  multifarious  actions  concerning  the 
property  rights  of  the  husband  and  ',lfe  after  divorce,  vhich  •.vere   in 
existence  during  coverture.  ^ 

The  judgment  is  affirraed.  ^i 


360, 


V/EBER  et  al  v.  VffiBER. 
(115  .'.r>.i71) 

(169  S.W.  Bep.,318) 

Supreme  Court  of  ..rlsincas,   June  22,   19KL-. 

Appeal  from  Circuit  Court,  lulasla  County;   G.  ■.7.  Heudriclrs,  Jv.d.se, 

Action  "by, Ida  V.'ober  against  Bnglebert  V/eber  and  aj^xofhsr.     Fron:  a 
judgmont  for  plaintiff,  defendants  a?PejiX«-    Affirmftdl  "        ' 


Tills  suit  v;n.s  inpt.it.nf ?r;    t-.n  yprtfyirgr  c] T^ii^ iTPi f^  fl.p-p.inst  appellants,  f Or 
the  alleged  alienation  of   the  affedtions  of  the  appellee's  husband,   Joe 
\7eber.     Tlie  appellee  married  Joe  \Veber,   the  only  chlTd  of  appeTTantsv  in 
-TUF'cIty  §£  Little  Roc!:  on  the  22d  day  of  November,   1910,    snd  they  lived 
ard  cohabited   together  as  husb  nd  and  \;ife  until  the  50th  day  of  August 
1911,  -./hen  there  v/as  born  to  them  a  male  child.     Thereafter  appellee  v/as 
talcen  seriously  ill,  and  to  such  an  extent   that  she  lost   the  control  of 
her  mOQtal  f  .cultics,  ard,   at  the  instance  and  recomir.endation  of  tho 
family  physician,  v/as,  by  proper  order  of  the  Pulaski  county  court,   ad- 
judged insane     aad  placed  in  the  State  Hospital  for  Hervous  Diseases,   for 
treatment. 

-\ppellee  and  her  husband,   at   the  time  of   the  $irth  of  the  child,  and 
dviring   their  married  life,   lived  immediately  adjoining  appellants,  and  her 
husband  \;orI:ed  for  them.     Appellee  was  released  from  tl:ie  hospital  as  cured, 
and  soon  thereafter  disagreements  arose  between  appellee  and  appellants, 
and  the  evidence  is    sharply  conflicting  as  to  the  causes  of  these  disagree- 
ments, and   is  especially  so  as   to   the  e::tent  to   which  appellants  -."ere  re- 
sponsible for  the  separation  of  appellee  ard  her  husband.     According  to 
appellee's  version,   appellants,  without  legal  justification  or  excuse, 
brought  about   the  separation,  as  a  result  of  vhich  appellee' c  husband 
took  away  their  child,  when  it  v^as  only  seven  weel:s  old,   tinco  .hich 
time  appellee  had  never  been  permitted  to  see  the  child-     She  recovered 
judgment  in  tho  sum  of  ';2,500,  and,  a  motion  for  a  nev/  trial  liaving  been 
overruled,  this    ^iperllias  been  duly  prosecuted. 

Smith,  J.      (aftor  stating  the   facts  ac  above).     A  number  of  e-cept-^- 
ions  were  saved  at  the   trial  both  to  the   admission  of  evidence  ani  the 
giving  of  instructions,   antf.  these  ericeptions  ha"be  been  considered  by  us; 
but  vie  do  not   find  any  prejudicial  error  or  question  of  sufficient  im- 
portance to  require  discussion. 

A  question  is  raised,  however,  '.'Mch  is  one  of  first  impression  in 
this  statie,  and  v/hich  has  received  our  earnest  consideration.  This 
question  is  the  right  of  the  v/ife  to  maintain  an  action  for  damages  for 
the~alienati6a  of  Uij  affections  of  her  husbandTi  Kiere  is  conf iicr~ainong 
"the  authoritrtes^as  to  whether  this  right  of  action  e::isted  in  favor  of ^ 
the  wife,  or  not,  at  co.nmon  lav/,  and,  although  there  are  numerous  cases 
which  hold  that   she  had  no  such  right,    the  better  view  appe:.rs  to  be  ti:at 


381. 

she  did,     Coraraon-lav/  causes  of  action  for  a  perconal  iSmjury  to  a  marrieu 
woman  belonged  to  her;    but   the  husband  vac  uequired   to   sue   vith  her  to 
recover  ccmijensation  because  of  her  disabilitjr  to  sue.     The  husband's 
right  of  action  abated  at   the  death  of   tlie  wife;  but  the  cause  of  action 
survived  to   the  v/ifo  and  could  bo  maintained  by  her  after  the  death  of  her 
husband.     Her  rijit  of  action  exictod,  brat  could  not  be  cot  in  motion  un- 
less her  husband  joined,  and,  by  reason  of   fiie  disability  of  coverture,   it 
remained  in  abeyance  and  could  not  be  procecuted  in  her  ovai  na.rEe.     Bennett 
V.  Dennett,   116  U.Y.   584,   23  17.  E.   17,   6  L.  H.  L.   553;  tmith  v.  Smith,    98 
Term.   101,   38  S.  U.  439,   60  /jn.  St.  Rep.   838. 

The  case  of  Bennett  v.  Bemiott,    supra,   is   a  leading  authority  on  this 
subject,   sud  the  opinion  in  that  case  revie'..i0c.  the  authorities  upon  this 
question,    ard,   in  upholding  a  judgment   in  favor  of  the   .ife,   it  v/as  there 
said: 

"Ue   thinl:  the  judgment  appealed  fuom  should  be  affiiroed,  upon  the 
ground  that   the  common  law  gave  the  plaintiff  a  right   of  action,  and  that 
the  Code  gave  her  an,  appropriate  remedy." 

In  1  Cooley  on  Torts   (5d  Ikl.)  p.  475,   it  was  said: 

"At  least  20  states  now  hold  that   such  an  action  ra^y  be  maintained, 
some  basing  their  conclusion  upon  common-lay  x^rinciplec  and  cone,  more  or 
less,  upon  the  various  enabling  statutes  in  favor  of  married  -omen,  which 
have  been  passes   in  recent  years." 

A  number  of  cases   siflpport   the  wife's  right   to  recover  for   the  alien- 
ation of  the  affections  of  her  husband, 'as   an  invasion  of  her  personal 
rights,  while  other  cases  regard   the  wife's  right  to  the  consorttiium  of  her 
husband  as  a  property  right.     One  of  the   leading  cases   talcing  this  latter 
view  is   that  of  Jaynes  v.  Jaynes,   39  Ktm   (IT.Y.)  40,   in  vihich  case  it   is 
there  said: 

"These  reciprocal  rights  may  be  regarded  as  the  property  of  the  re- 
spective parties,    in  the  broad  sense  of  the  v.ord   'property,'  which  in- 
cludes things  not    tangible  or  visible,  and  applies   to  vh:t6ver   is   exclusive- 
ly one's  ov.n." 

.\nd  it   is    there  further   a:: id: 

"But  as,  at  common  law,  tlie  husbanc"  ajad  wife  were  regaacled  as  one 
person,  an.d  her  personal  rights  were  suspendet.,   or   incorporated  v/ith  his, 
during  coverture,   so  that  if   she  were  injitred   in  her  person  or  property 
she  could  bring  no  action  for  redress  Avithout  her  husband's  concurrence, 
and  in  his  name   a^  well  as  her  own     *     **     ♦*   she  was  practically  precluded 
from  suing  for  damages  caused  by  alienating  the  affections  of  her  husband 
and  enticing  him  av/ay.     *     *     *     Her  disability  in  that  respect,   we  think, 
has  been  removed  in  tthis  state  by  legislation.     .'.  married  \.-oman  may  nov;, 
while  married,   sue   end  be   sued  in  all  matters  having  relation  to    'her  sole 
and  separate  property,*   or  for  an  injury  to  her  person  or  character,   the 
same  ac  if   she  wa,s  sole,     *     *     *     ai^^  it  is  not  necessary  or  proper  to 
join  her  husband  \.ith  her  as  a  party  in  any  action  or  special  proceeding 
affecting  her  separate  property.     *     *     *     if  we  are  correct   in  holding 


382. 

that  the  right,  •.."nich  the  plaintiff  alleged  v/ac  invacod   by  the  defondazit 
in  this  action,  was  her  separate  property,  the  case   is  -./ithin  tlE    ctai^tos 
referred  to.      If  it  be  not  property  in  the   cense   in  which  the  v/ord   'prop-., 
erty'   is  used  in  the   statute  cited,    it   is   a  personal  ri^ht,  and  as  the 
statute  e:cto32ds  to  all  injuries,  \.'hether  to  property,  person,   or  character; 
it   seems  to  bo  sufficiently  comprehensive  to  embrace  an  injury  to  fce  ri^it 
in  question." 

In  the  case  of  Varrsn  v,    .arron  ,   89  ::ich.  123,   50  n.  "7.   8^-2,   K  L. 
R.  A.   545,    t'le  ;,lf3''3  r-'.rht  to  suo  and  recover  daina^'ec  for  the  alienation 
of    the  affecciois    o?  Jir::.-  husbsad  v/as   said  to  e::iEt  under  tie    statute  r/iiich 
was  set  out   ir.  the   opiuion.     it   .-as  there  said: 

"Under  the  strtutos  of  this   stfte  relative  to  the  rijihts  of  married 
■./omon,    aid  the  decisions  of  our  a.n  courts  in  relation  thereto,  the  ri.^-.t 
of  the  wife  to  bring  this  action,  as  ./ell  all  other  suits  to  redress  her 
personal  v/rongG,  seems  to  me  to  be  perfect I7  clear.     Hie  statutes  provide: 
"That  the  real  au-d  personal  estate  of   every  female,   acquired  before  mar- 
rias©,  and  all  property,  real  and  personal,   to  v;hich  she  raay  afterwards 
become  entitled  by  gift,  grant,   inheritance,  devise,  or  in  any  other  man- 
ner,  ^all  be  and  remain  the  estate  aiii  proi^erty  of  such  female,  snd  slir.ll 
not  be  liable  for   the  debts,   obligations,  and  engagements   of  her  husb.-.nd, 
and  may  be  contracted,   sold,  transfered,  mortgaged,  conveyed,   devised,   or 
bequeathed  by  her,    in  the  same  manner  acd  with  the   lilce  effect  as  if  eIb 
v/ere  unmarried.*     Kow,  St:.t,  P.  6295,      'Jjctions  may  be  brought  by  fend  a-. 
gainst  a  married  woman  in  relation  to  her  sole  property,    in  the  saroo  msjx- 
aer  as  if  she  -.vere  unmarried;   and  in  cases  -Jhere  the  property  of  the  hus- 
band cannot  be  sold,  mortgaged,  or  other\7ise  incumbenfed  v/ithout  the  con- 
sent of  his  v/ife,   to  be  given  in  the  manner  prescribed  by  la"',   or  \.'hen  his 
property  is  exempted  "bj  lev;  from  s;le  on  e::ecution  or  other  final   process 
issued  from  any  court  against   Mm,  his  wife  may  bring  an  action  in  her  own 
name,   with  ths   lilce  effect  as  in  cases  of  actions  in  relation  to  hei-  sole 
property  as  aforesaid.'     Eov;.  Stat.   6297.     Under   these  statutes  it  has  been 
held   that  a  \.lfe   is   entitled  to  and  may  sue  for  and    recover   in  her  o\fa 
name  damages  for  her  personal   injuries  and  siifferiug  from  assatilt   and  bat- 
tery  (Berger  v.   Jacobs,   21  Ilich,   215;  Eyatt  v.  Ad3mE,   16  Id.  180,    198), 
and  for  injuries  to  her  psrson  through  tlae  negligence  of  another   ("lich. 
Cent,  R.  R.   Co.  v.ColeCiEn,   28  llich.  4:'l-0),   also  for  slander   {Leonard  v. 
Pope,  27  Mich.   145).     If  the  damages  in  such  cases  are  her  individual  prop- 
erty,  as  expressly  held   in  Berger  v.  Jacobs,   I  cannot  see  \/hy,   in  reason 
and  on  principle,   tie  damages  arising  frora  the  loss  of   the   society  snd 
support   of  her  husband  are  not  alss  her  individual  property, ^-Surely  tli© 
support  and  maintenance   ..hich  she   is  entitled  to  from  her  husbjmd,   and 
which  she  loses  by  his  abandonment,   is   capable  of  ready  aix".  accurate  meas- 
urement in  dollars  and  cents,    and  can  be   said   to  be  a  property  right ,  v/hich 
she  has  lost   by  the  v/rongful  interference  of  the  defendaxits.     'The  loss  of 
the   society  of  her  husbarji,   afid  her  mental  anguish  axf.   suffering,  are  not 
BO  easily  ascertained  -.vhen  compensation  is   sought,   and  to  be  guaged  by  a 
money  standard;  but  damages  for  such  anguish  and  suffering  are  given,   as 
best  ±he  jury  can,  and  are  perraissable,   in  most   actions   of  tort.     *     *     * 
There  has  never  been  any  reason  urged  against  the  ri^t    of  the  husband   to 
sue  for  the  loss  of  the  consortium  of  his  vdfe.     ,lnd  if,  as   sham,  tlie 
wife  is  now,  under  either  the   liberal  letter  or  spirit  of  our  marriage 
laws,  entitled,  as  of  her  c.-n  property,   to  the  damages  arising  fDDm  her 


■»»-- 


:n'<-» 


.•■<&^1^■■i\ 


S63. 

personal  iujnriQC — the   iujui-ies  of  hor  "body  or  mind — there  can  1)0  no 
good  reacon  \,hy  eIe   can.not  su3  for  and  recover  damagec  for  tiie  loss  of 
tlio  consortium  of  hor  h",;.-o b-'aad  tha.j  does  not  oc]tially  and  az  well  apply  to 
the  f.uit   of   the  hnsTJsnd  or  account   of  the  loss  of  hor  society.     iTho  v/ife 
is  onoltled  to  the  i-.ooxet;; ,  protection,  ard  raipport  of  her  husTsand  as 
certainly,   under  tho  ?.aWj   aixl  ty  moral  ri^lit,  as  he   is  to  her  society 
and  aorvioes  in  hir.  houi^eliold.  *     *     *  It  ic  an  old  iraxira,  and  a  good 
one,    tliat  the  law  v.'.;.ll  never   'suffer  an  injury  aiid  a  darmge  v/ithout  re- 
dress.'      Will  the  ?a,/  c.;d   tho  husTDancl  ard  not  help  tho  wife  in  a  like 
case?    Hot  Tiud'/r  the  jJi'r>:;ca.t  enlighten/id  vic\7s  of  the  marriage  relation 
anl   its  reciprsnal  r'.j^rj.ls  -and  duties.     71)S  rea^oni^j  that  deprives  the 
mfe  of  redrofiij  v/li'^n  hor  ha-shand  is   talijn  a\/ay  from  her  "by  the  "blandish- 
ments and  unla«'.ful  iaflur^nocs  of   others   is  a  relic  of  the  "barharity  of 
the  coi;-iraon  lav;,  vMch  ir.  sjffect  made  the  vAfe   tho  mere  rervant  of  her 
huchand,  and  deprived  her  of  all  right    to  redress  her  personal  \7rongs 
except  hy  his  will." 

In  the  case  of  Bennett  v.  Bennett,    supra,    the  court  discussed  the 
nature  of   tliic  action  and  treated  it  as  of  the  iiature  of  a  persoial  in- 
jurj'  to  the  v/ifo,  and   it  was   there   said: 

"An  injurj''  to  the  parson,  within  tho  meaning-  of  the   law,    includes 
certain  acts  -.^hich  do  noi.   involve  pliyr.ical"  or  personal  injury'.     •''Thus 
criminal  c onv^ersati  on  v.lth  the  wife  has  long  heeu  held  to  he  a  personal 
injury   to  the  huj^hand  *     *     *  and  tlr^  seduction  of  a  daughter  a  like  in- 
jury to  tlie  fatdier." 

And  it  v/as  there  further  said: 

"!2he  hasis  of  tho  action  is   the   loss   of  consortium  or   the  right  of 
the  husband  to   the  conjiigal  society  of  his  wife.      It   is  not  necessary 
that  there  shall  he  proof  of  any  pecuniary  loss  in  order  to  sustain  the 
action.     Eermance  v.   Joiros,   32  How.  Prao.    (IT.  Y. )  142;  Rinehart  v.  Bills, 
82  Ho.   534   (52  J-m.  Rep.   565).     Loss  of  service   is  not  essential,  but   is 
merely  natter  of  aggravation  and  need  not  be  alleged  or  proved.     Bigaou- 
ette  V.  Paulet,    134  Ilass.   125    (45  Am.  Hep.   30V)." 

Cooley  says  that  the  gist  of  the  action  is  the  loss  of  consortitun 
v.liich  includes  the  husband's  societjv,  affections  and  aid.  1  Cooley  on 
Torts,  p.  478. 

In  the  case  of  Anna  Kolin  v.  Ilarion  Pearson,    191  llass .   283,   77  H-  E. 
890,  4  L.  H.  A.    (U.  S.)   643.    114  Am.  Sv.  Rep.   605,   6  Ann.    Cas.   658,   which 
was  a  suit  "by  the  -./ife  for  the  alienation  of  the  affections   of  her  hus- 
band,  the  ri^ht  of  the  wife   to  maintain  the  aiit  v.as  upheld,   and  many 
cases  ai-e  cited  in  the   Oi>inion  of  the  court  and    in  the  briefs  of  counsel; 
other  cases  are  collected  in  tho  footnote,   and,  after  a  reviev/  of  the 
^^erican  cases,    tlii  following  Etatej::cnt   is  r.?ade  by  the  editor   of  the   foot- 
note: 

"In  the  United  States,   Wisconsin,  Maine,   ard  Hov.'  Jersey  seem  to  stand 
alone   in  denying  to  the  v.lfe  tlie  right   to  sue   for  ^e  alienation  of  her 
husband's  affections  and  enticing  him  away  from  her,   thus  depriving  her 
of  his  support,  vinder  statutes  giving  her   the   ri<^t  to   sue  and  be  sued  in 


4 


324. 

her  o\a.  name." 

But  Hew  -Terncy  can  no  lorcor  lie  c7Lar3sed  smong  tlie  statec  v/hich  deny 
the  right  of  tlio  v;ift:  to  r.nintain  this  cause  of  action. 

In  the  case   of  Sim;i  v.  Sins,    79  1.    J.  Law,    577,    76  Atl.   1063,    29  L. 
R.  A.    (IT.   S.)   642,  an  appeal  v/as   talun  from  tho  order  of   the  trial  coia-t 
sue  tailing  a  denu.rror  vjhioh  v/as  intorooscd  upon  the  general  grourd  t]:iat 
a  suit  v/ou3.d  not   lis,  v,hich  was  instituted  to  recover  dcmageE  for  raalic- 
iously  enticiiXi  av.ay  fxj  plaintiff  c  li.-isliffpd,  and  thereby  alienating  hie 
affections.     1J^-.s   oplniT^  in  that  case  recitcsd  that  plaintiff  baced  her 
ri^iit  to  sue  upon  an   £'.;-c  entitled  "/.n  act  for  the  protection  and  enforce- 
ment of  th3  rights   of  irarried  Y.-Droen."     (P.  L-   1906,  p.   525).      Ihis  §,ct 
provided  that  rjiy  irarrisd  v/oman  iray  iraintain  an  action  in  her   o\m  name 
and  without  joiniiig  he-:-  hosbani  therein,  for  all  torts  coimiitted  a.:;ainst 
her  or  her   separate  property,    in  the  caite  ranner  as  sis   lawfully  might 
if  a  feme  sole,  provided,  however,    that   this   act  sloall  not  be  so  con- 
strued ac  to   interfere  \irith  or  tal©  av-aj'  any  right  of  action  at  law  or   in 
equity  nov/  provided  for  the  torts  above  mentioned.     The  second  section 
provided  that: 

"Any  action  broi^ght   in.  accordaice  with  the  provisions  cf  this   act 
may  be  prorecuted  by  such  married  worr.an  separately  in  her  ovrn  naras ;   and 
the  nonjoinder  of  her  husband  shall  not  be  pleaded  in  any  such  action." 

The  Court  of  Appeals    of  Tie -.7  Jersey  reversed  tho  action  of  the  trial 
court  in  sustaining  the  deip.urrer,  and   in  doing  so  used  the  following  lan- 
guags   in  construing  the  act  above  quoted: 

'"Sie   question  therefore  presented  in  this   case,    in  the  light  of  the 
act  of  1906,   is  res  nova,  and   th5  conclusion  v.-e  have  reached  is  supported 
by  the  great  weight   of  authority.     Eiat   this  act  was   intended  to  confer 
■  the  paver  upon  a  marrievi  v;oraan  to  protect  and  enforce  her  ri^^ts   is  the 
specific  announcement  contained  in  its  title.     Tlio  body   of  the  act  de- 
clares that  she  may  narntain  an  action,   as  a  feme  sole  might  lawfully  do, 
and  vdthout  joining  her  hij.sband  tl-£rein,   for  all  torts  committed  against 
her  or  'riir  property.     ITecpiug  in  mind  the  old  law  and  the  existing'  mis- 
chief,   it  becomes  rijanifest  that  the  legislative  intent  vMch  inspired  this 
remedial'  itessurc  could  have  been  only  a  desire  to  confer  upon  tho  rarried 
woman  tloat  ecuality  of  remedy  as  an  indepandent   suitor,  which  v,-ould  enable 
her  to  vindicate  her  rigi-it   in  personam  for  a  tort  committed  against  her, 
and  thus  remedy  the   inscjuality  to  vhich  she  was  subjected  by  the  common 
law.'' 

It  'Till  be  seen  that  our  statute  giving  irarried  women  the  right  to 
cue,  v.mch  \-.ill  later  be  set  out,   is  brcadcr  an?,  more  comprehensive  than 
tlie  He-'  Jersey  statute  -;Ia.ch  the  Court  of  .^VPpeals   oi   that  state  said  v.as 
sufficient   to  authorize   the  maintenance  of  a  suit  by  the  \;ife,    such  as  v.-e 
have  liQre. 

In  the  case  of  C-orxierd  v.    ?-emerd,    165  isPa-   256,   39  .^tl.   884,  40  L.  P.. 
^.   549,   64  Am.  Lt.  I^ep.   6-1-6,    involving  the  question  here  under  considera- 
tion.,  the  £i3preme  Court  of  that  state  said: 


285. 

"V/here  th2  wife  hac  been  frcod  frora  her  common-law  disabilities,   and 
may  sue   in  her  o^m  naiie   and  rigjit   for  tortD  done  her,   wo  see  no  reason 
to  dcu'ot  lier  rijht  to  iroiiitain  on  actioa  agaiost  one  v-ho  has  ^7rongfully 
induced  hor  hiisband  to   le;,ve  her.      Generall:/  this  ris^it  has  been  recog- 
nized and  sustained  in  jUi'iEdictions  where  she  has  the  capacity  to  sue." 

One  of  the  earliest  A  merioan  cases  holding  the  wife  has  the  right 
to  sue  for  the  lo^s  cf  consortium  of  her  husband  is  the  case  of  yestlake 
V.  ".'estlalK,   M  Ohi-j  S-. .   627-633    (32  Am.  Rop.   397),    a-id    this  has  becoEB 
one  of  tha  ilosdiu^  cayr-;-, ,  and   is  cited  in  ir.gny  of  the  subsequent  cases 
on  this  Etibject,      I'z  mv.s  there  said: 


"If,    in  this   state,   the  coinmon-la\'.'  dominion  of  the  husband  over  the 
property  and.  personal  rights  of  the  wife  has  been  talsn  away  from  him  and 
conferred  upon  l:ier,   and  remedies  in  accordance  with  the  spirit  of  tSie 
civil  law  hs,ve  been  e::pressly  given  to  the  wife  for  the  redress  of  injur- 
ies to  her  person,  x>roperty,   and  personal  rights,   all  of  vhich   I  hope  to 
show  has  been  done,  then  it  must  follow  that  she  may  maintain  an  action 
in  her  own  nsme   for   die  loss  of  the  consortium  of  her  husband  against  one 
v/ho  xa-ongfully  deprives  lier  of   it,   unless  the  consortium  of  her  husband 
is  not   one  of  her  personal  rights.   *   *  *     is  tie  right   of  the  wife  to  the 
consortium  of  the  husband  one  of  hor  personal  rights?     If  it  is,   then  tlie 
statute  males  tte  right  of  action,  growing  out   of  an  injury  to  the  right, 
the   separate  property   of  the  wife,   for  T*iich  tlie  Code  gives  her  a  right 
to  sue  in  her  own  name .     Before  marriage  the  man  and  v.oman  are  endowed 
vdth  the  same  personal  rights.      If  under  no  disability'',   each  is  competent 
to  contract.     V.'hon  the   agreement   to  marry  is  entered  into,  but  before  its 
consummation,   each  has  the  same    interest  in  it,  and  either  may  sue  for  a 
breach  of   it  by  the   other,     m  this  state  neither  the  husband  nor  v;ifo 
unconditionally  surrenders  their  personal  rights  by  consummating  the  con- 
tract of  marriage.     On  the  contrary,   each  acquires  a  personal  as  well  as 
legal  right  to  the  conj.ugal  society  of  the  other,  for  the  loss  of  vfnich 
either  may  sue  separately." 

In  the   third  edition  of  Cooley  on  Torts,   vol.   1,  p.  477,    the  case  of 

Foot     v.  Card,    58  Conn,   1,    18  Atl.   1027,    6  L.  R.  A.   829,  18  Am.  St.  Eep. 

258,    is   quoted  from  at  length  vd.th  approval,   and  -.78  find  there  the  follow- 
ing quotation  from  that  case: 

"Y^hatever  inequalities  of  right  as   to  property  may  result   from  the 
marriage  contract,   husband  ard  vafe  are  equal  *     -■'     *   in  one  respect, 
namely,   each  owes   to  the   other  tlE  fullest  possible  measure  of  conjugal 
affection  ard  society;   the  husband  to  the  vafe  all  that  the  v.-ife  owes  to 
him.     Dpion  principle  tliis  right   in  the  v.rLfe  is  equally  valuable  to  her, 
as  property,   as  is   that  of  the  husband  to  him.     Her  right  being  the  same 
as  his   in  kind,  degree,  and  value,   there  would  seem  to  be  no  valid  reason 
v*^  the   law  should  deny  to  her   the  redress  which  it   affords   to  him.     But 
from  time  to  time  courts,  not  denying  the  right  of   tie  wife  in  this  re- 
gard, not  denying  that   it  could  be   injin-ed,  have  nevertheless  declared 
that  the   law  neither  v»uld  nor  could  devise  and  enforce  any  form  of  action 
by  wlxich  she  might  obtain  damages.     In  3  Blaclcstone's  Commentaries,   143, 
the  reason  for  such  denial   is   thus   stated:      "Tae   inferior  hath  no  "kind  of 
property  in  the  companj'-,  care,   or  assistance  of  the  superior,  as  the   sup- 
erior is  held  to  have  in  those  of  the    inferior;   therefore   the   inferior  can 


886. 

suffer  no  loss  or   injury.'        Inafsmuch  as  "by  universal  consent   it   is   of 

the  essence  of  ever^^  rns.rriasG  contract  that  the  parties   thereto  shall, 
in  regard  to  this  partr'.ciilar  matter  cf  conjiugal  society  and  affection, 
stand  upon  ao.  '^.c^j.rAxt'j ,  \r;  are  unable  to  find  any  siipport  for  tlie  denial 
in  this   roa&on,  3.ni,    the  rri^ht,   the   injury,   and  the  consequent  dsjrage 
teia^'  admitted,    there  co.njs  into  operation  another  rule,  nanely,   that 
the   lav;  v/ill  •per/irt  no  n-aa  to  obtain  redress  for  v/rorig  e::cept  hy  its  in- 
strumentality,  avid  it  will  furnish  a  mode  for  Obtaining  adeqi:ate  redress 
for  every  wro^ig.     7h:".£   ■'i.ile,   lying  at  the  f'^andation  of  all  law,   is  more 
potent   thPTx,  '^:^d.  -la'cF   trooedence  of,,  the  rodcon  that  the  v/ife   is   in  this 
regard  witlauc.';  trio  pal.  cf  the   lav/,,  "because  of  her  inferiority." 

In  this  0^,36  oz  Foot  v.  Card,    Eupra,    a  recovery  -./as  permitted  \n.th- 
out  reference  to  ajy  e-.ii^-.t'liAg-  act  authorizing;  the  v;:.fe  to  sne  alone.     Tlie 
con^plaint  had  heeu  dem.-:T.red  to  upon  the  grouii^.  that  the  v/ife  could  not 
alono  maintain  this  action,  but  th^t  loer  hu^o^rr.d  v/as  a  necessary  party  to 
the  action,   if  any  cau-^ri  of  action  eiicis'ted.       Tiiat  contention,  v/as  disposed 
of   in  tiie  follov/ing  3auf.u.a^e! 

"V.Jherever  there   is  a  valuahle  rijht  snd  an  injury   to  it.,  "/ith  con- 
sequent damage,   the   o"bl?.3ation  is  upon  the   law  to  devise  and  enforce  such 
form  and  mode  of  redress  aa  v/ill  maLo   the  most  complete  reparation.     A 
technicality  must  not  be  permitted  to  \.'0rlc  a  denial  of  justice.     The  de- 
fendaat  has  no  possible  interest  in  requiring  the  husband  to  "be  coplain- 
tiff,   other  than   that  she  should  lia-'re  security  for  her  costs   in  the   suit, 
and  he  protected  from  a  second  judgrs'jt  upon  the  same  ca^'ise  of  action  in 
his  name.     As  she  is  in  no  danger  of  a  ceooni  juigrrent.   and  can  compel 
the  plaintiff  to  give  sccnrit^r  for  coses,   J.t   is  simply  an  empty  teclmi- 
cality  which  she  here  intorpor.5es.     TJtere  ar3  good  reasons  for  the  rule 
that  the  husband  should  join  in  a  corpiaint  for  dans-ges  resulting  from 
an  injury   to  the  pemc?.,  property,   reputation,    or  feelings  of  the  v/ife 
in  every  case  other  thai3   tloat  before  us.     v;iiena"^er  in  aay  of  these  she 
suffers,  prGsumabJy  he  suffers;  he  has  a  direct  pecuniary  interest  in  thfi 
result;  ard  the  defendant  is  rightfully  entitled  to  protection  from  a 
second  judgment.     But,    in  the  case  before  us,   it   is   the  pith  and  marrov/ 
of  the  complaint  that   i.M  alienating  tht  h'.r-"bfmd'E  conjugal  affection  from 
the  wife,    in  inducing  him  to  deny  his  conjugal  fiooiety  to  her,    in  per- 
suading him  to  give  hiJ  adulterous  affections  and  society  to  the  defend- 
ant,  the  latter  has  inflicted  upon  the  plaintiff  an  injury  "by  vhioh  from 
the  nature  of  the  case,   it  is   impossilila  for  the  h'jsbard  to  suffer  injury, 
for  •'Jiich  it  is   impo3si"bIe   for  him  to  ask  redress  either  for  himself  or 
for  his  ;/ife.   *     *     *     i'n  a  ca?:e  of  this  kiru  the  v/ifc  can  only  asl:  for 
damages  by  acd  for  hsrself ;   the   law  cinnob  mala3  redress  otherv.lse  than  to 
her  solely,   apart  from  all  others,   especially  apart  from  her  husband. 
For  no  theory  of  thje   lav/  as  to  the  merger  of  the  rights  of  the  wife   in 
those  of  the  husb.and  could   include  her  .vights  to  his  conjugal  affection 
and  society.     Althou^  all  other  debts  and  rights  to  her  might  go  to  him, 
there  yet  remained  this  particular  debt  from  him  to  her  a"b50lutely  alone 
and  "beyoEd  the  reach  of  the   lav;  of  merger." 

V;e  are  not  called  upon  to  sp^rovc  all  that  v/c  have  here  quoted  from 

this  Connecticut  case;   but  the  sig-nif icance  of  that  opinion  is   that  a 

recovery  v.as  peimitted  v/ithout  reference  to  any  enabling  act  permitting 
the  v/ife  to  sue  alone . 


z^^^-^fc^*^. 


387. 

Hany  other  caces  are  cited  in  the  cases  \7e  have  quoted  from;  hut 
those  quoted  from  shov/  upon  vdiat  thooriec  and  ucder  what  circumctaaces 
recoveries  have  been  permitted.     Tlie  absurdity  and  cruel   injustice  of  the 
common- law  fiction  of   th3   identity  of  husbarcl  and  v/ife  has  long  been  rec- 
ognized, and  the  tendency  of  all  modern  legislation  has  been  towards  the 
emancipation  of  the  wife.     But  this  amelioration  of  the  wife's  conc.ition 
must  come  throu^  the  legislative  function,  and  her  disabilities  at  the 
common  law  exist,  except   in  so  far  as  th^y  have  been  removed  by  consti- 
tutional couventiojos  or   legislative  enactments.     Some   of   tlE  disabilities 
under  vhich  the  wife  still  labors,  as  the  result   of   the  common-lav;  fic- 
tion of  the   legal  unity  cf  the  hucbaro.  and  vrife,   are  pointed  out  in  the 
opinion  in  the  case   of  Kies  v.  Young,   64  ;a*lc.   381  i  42  S.  V/.   669,   62  Jkm. 
St.  Rep.  198.     But,   while  she  still  labors  unc^er  the  disabilities  there 
recited,  we  thin'c  the  Legislature  has  clearlj^  manifested  its  ptirpose  to 
manumit  her,  so  far  as  maintaining  an  action  to  enforce  any  legal  right 
she  may  have,   or  to  secure  redress  for  any  actionable  wraog  inflicted 
upon  her,  \^ere  the  recovejrj'  would  inure  to  her  benefit. 

"Where  a  married  vvtjman  is  a  pai-ty,  her  husbamd  must  be  joined  -.vith 
her  except   in  the  following  cases:     First,  She  may  be  sued  alone  upon 
contracts  made  by  her   in  respect  to  her  sole  and  separate  property,   or 
in  respect  to  any  trade  or  business  carried  on  by  loer  under  any  statute 
of   this  state.     SecorxL.     She  may  maintain  an  action  in  her   ovm  name  for 
or   on  account   of  her  sole   or  separate  estate  or  property,    or  for  damages 
against  any  person  or  body  corporate  for  any  injury  to  her  person,  char- 
acter,  or  property.   *     *     *     Ihird.     V/here   the  action  is  between  harself 
and  ter  husband,   she  may  sue  ard  be  sued  alone."    Section  6017,  Kirby's 
Digest. 

These  v/ords   "person,   character,    or  property"  are  of  tlie  broadest 
signification  and   import,   and  vould  appear  to   include  any  cause  of  action 
vihich  could  arise   in  favor  of  a  married  v.cman,   out  of  any  relation  which 
she  can  legally  occupy.     Although  she  still  labors  under  some  disabili- 
ties,  she   is  given  by  this   statute   the  right    to   enforo6  in  ter   own  name 
any  right  which  she  legally  possesses.     'Tiiile   it  appears  from  a  study  of 
the  cases,  which  hold  that  a  wife  may  sue  for  the  alienation  of  the  af- 
fections of  her  husband,    that  in  some   of  the  states,   where  the  courts  so 
hold,    the  statutes  liavo  entirely  manumitted  the  wife  from  her  common-law 
disability  vath  reference  to  suing  in  her  own  name,   it  v/ill  also  appear, 
from  cases  which  we  liave  cited,  and   from  other  cases  therein  cited,   that 
the  right  of  action  has  been  upheld  in  the  wife's  favor  where  the  enabling 
acts  VvBre  not  as  broad  as  those  of   this   state. 

So  that,   vhether   tiiis  cause  of  action  be  denominated  a  personal  right 
or  a  property  right,    the  wife,  under  the  laws  of   this  state,  may  sue   if 
it   is  either;   ard  the  judgment   of  the  court  below  is  therefore  affirmed. 


388. 


LILLrsriKUIP     V.     RIPPETOE. 

(Supreme  Coiirt  of  Tennessee.   Oct.   26,   1915.) 
(133  Tern.   57) 
(179  S-  \T.    620.  ) 

Certiorari  to  Court  of  Civil  Appeals. 

Action  ty  Sara  A.  Lillienkarap  asainst  \7.   T.  Eippetoe .     A  judgcent 
of  dismissal  was  affirmed  by  the  C   ourt  of  Civil  Appeals,  and  plaintiff 
brings  certiorari.     Affiircied. 

« 

Buchanan,   J. — The  onlj-  question  necessary  to  be  decided  is  v^iether 
a  divorced  woman  can  maintain  against  her  formec  husband  an  action  for 
damages  resulting  from  an  assault  and  battery  commit t6d  by  him  upon  her 
person  after  the  passage  of  chapter  26  of  the  Acts  of  1913,  and  while 
they  sustained  toward  each  other   the  relation  of  husband  and  wife;   the 
action  1-a.ving  been  instituted  after  the  divorce,   and  vathin  one  year  after 
the  date  of  the  battery. 

The  case  is  before  us  on  plaintiff's  petition  for  certiorari,  seek- 
ing to  reverse  the  judgment   of  the  Court  of  Civil  Appeals,  vhich  affirmed 
the   judgment   of   the  circuit  court  by  v,hich  plaintifi"'s  suit  was  dismissed 
at  the  point  of  a  demurrer  interposed  by  defendant. 

Beyond  all  question,   under  the  common  law  as  it  was  in  force  in  this 
state  prior  to  the  passage  of  the  act  of  1913,    supra,    such  an  action  as 
this  could  not  have  been  maintained.     It  was  a  fundamental  principle  of 
tlie  common  lav?  that  by  marriage  husband  and  wife  became   one.     Her  e:i:ist'- 
ence  as  a  legal  unit  became  merged  into  that  of  tlB  husband,  and  during 
the  continuance  of  the  c overture  she  was  capable  of  suing  or  defending 
an  action  only  v.lth  his  concta-rence,  and   in  his  name  as  well  as  her  ovm. 
It  has  been  held  in  this  state  that  neither  spouse  could  maintain  an  ac- 
tion against  the   other  for  torts  committed  by  one  against  the   other  dur- 
ing coverture.     The  holding  was  said    to  rest  in  part  upon  their  unity  by 
virtue  of  the  marriage,   vMch  v;as  said  to  preclude  one  from  suing  the 
other  at  law,   and   in  part  it  was  said   to  rest  upon  the  respective  rights 
and  duties   involved  in  the  marriage  relation.     IIcKelvey  v.  IIcKelvey,   111 
Tenn.    (3  Cates )   388,    77  £.  U-    664,    64  L.  R.  A.   991,   102  Mix.  St.  Rep.   787, 
1  Ann.   Cas.   130.     This  holding  is  supported  by  a  practically  unanimous 
current   of  authority.     Abbott  v.  Abbott,   67  He.   304,   24  .to.  Sep.  27; 
Schouler'c  Domestic  Relations,  Sec.    52   (4th  Sd.);   Cooley  on  Torts   {2d.Zd.) 
Seo.  223-235;   21  C;-c.    1519,    1520;    Thompsoav.    ThOE3?son,    218  U.  S.   611,   31 
Sup.   Ct.    Ill,   54  L,    Ed.  1180,   30  L.   R.  A,    (R.  S.   1153,    21  Ann.   Cas.    921; 
Strom  V.  Strom,    98  Ilinn.  427,   107  IT.  \7.   1047,   6  L.  R.  A.    (N.   S.)   191,    116 
/jh.  St.  Rep.   387,   and  note;  Freethy  v.  Freethy,  42  Barb.    (IT.Y.j  641; 
Schultz  V.  Christopher     65  Wash.  496,    118  Pac.    629,   38  L.  R.  A.    (IT.S . ) 
780;  Gchultz  v.  Scliultz,    89  H.  Y.   644;  Peters  v.  Peters,    156  Cal.   32,   103 
Pac.   219,   23  L.  R.  A.    (IT.S.)   699;  Bandfield  v.  Bandfield,    117  Ilich.   60, 
75  H.  U.   287,  40  L.   R.  A.    757,    72  Am.  St.  Rep.   550;  Libby  V.   Berry,    74  lie. 
286,   43 /jn.  Rep.   589;  Phillips  v.  Barnett,    1  Q.   B.  D.  436    (E  nglish) . 


389. 

In  some   of  the  cases  cited  atove  the   insistence  •vas  made  that,    the 
marriase  relation  having  been  terminated  by  the  divorce,   the  ri,-^ht  of  ac- 
tion revived,  having  t'^or  r:ere3y  snipsaided  during  coverture;   but  in  reply 
it  was  said: 

"That  the  error  in  this  jnsictence  was  in  supposing  that  a  right  of 
action  ever  e::isted;  thai  there  was  no  civil  remedy  either  during  or  af- 
ter ca/ertare,  "b^caars  tlicre  was  no  civil  right  to  "be  redressed."  Phil- 
lips V.   Baniert  and  Abbott  v.  Abbott,    sy.pra. 

See,   al3-i,  ll-;TColv^y  v.  IlcZelvay,,   supra. 

We  do  net  u-idsrsta.:.-!  plaintiff's  brief  to  question  the  rule   of  the 
common  law,   a^  a'-w-e  se';  or.t.     Her  itisistence  is  that  the  rule   of  the 
conmon  law  was  abrogated  by  the  follov.'ing;  statutes  of   this  state: 

"If  xi^Y  person  ccnmits  an  assault  and  battery  upon  his  wife,   for 
any  cause  vhatcoever,  ho  is   guilty  of  a  misdemeanor,   and  punishable  ac- 
cordingly."    Shan.   Code  1396,  Sec.    6470.     . 

Chapter  26  of  the  Public  Acts  of  the  year  1913: 

"A  bill  for  an  act   to  be  entitled   'An  act  to  remove  disabilities  of  cover- 
ture from  married  wonen,   and  to  repeal  all  acts  and  parts  of  acts 
in  conflict  vo.th  the  provisions   of  this  act,' 

"Section  1.     Bu  it  eiiacted  by  the  General  Assembly  of  the  state  of 
•Tennessee,   that  married  women  be,   and  are,   hereby  fully  emancipated  from 
all  disability  on  account  of  coverture,   and  the  cOi^^ion  law  as  to  the  dis- 
abilities of  irarried  wo:aen  and   its  effects  on  the  rights  of  property  of 
the  wife,    is  totally  abrogated,  ani?.  mai-riags  £]:!all  not   impose  any  disabil- 
ity or  incapacity  on  a  waiian  as  to  the   o\^norship,   aciguiEition,   or  disposi- 
tion of  property  of  any  sort,   or  as  to  her  capacity  to  maJce  contracts  and 
do  all  acts  in  reference   to  propertj'^  v.hich  sle  could  lawfully  do   if  she 
were  not  married;  bvit  evory  \xnan  now  married,   or  hereafter  to  be  marrieO., 
shall  have  the   same  capa-^-ity  to  acquire,  hold,  manage,   control,  use,   en- 
joy,  and  dispose  of,  all  property,   real  and  personal,    in  possession,  and 
to  malce  any  contract   in  reference  to   it.,  and  to  bind  herself  personally, 
and    to  cue  and  be  sued  \d'ch  all  the  rights  and  incidents  thereof,   as  if 
she  were  not  married. 

"Sec.  2.     Be   it  further  enacted,   that  all  acts  aad  parts  of  acts  in 
conflict  with  the  provisions   of   tiiis  act  be,  and  the  saire  are,   hereby  re- 
pealed. 

"£ec.   3.  Be  iffurther  enacted,   that  this   act  talra  effect  from  and 
after  January  1,    1914,    the  public   welfare  requiring  it. 

"Passed  February  20th,   1913." 

The  constitutionality  of  the  act  of  1913  was  assailed  in  Parlow  v. 
Turner,   178  S.  V/.  766,   and  on  that  point   this  court,    speaking  through  its 
Chief  Justice,    said: 


S90. 

"It  is  saM   the  act  is  urc  onctitutional  because  it  violates   so  much, 
of  article   2,  Sec.    17,   of  the  Constitution  as  provides  that  no  bill  shall 
becono  a  law  which  omlsraoos  rnoro  thaa  one  subjoct,    that  subject  to  be  e?;- 
prossed  in  the  title.     Ihore   is  but   a  singje  subject,  and    that  appears 
fully  in  the  title,  vir,,    the  relief  of  married  -vjomon  from  the  disabili- 
ties of  coverture.     T.'aat  subject  fully  covers  CYory  eleneut  that   is  writ- 
ten into  the  body   of  the  act.     Ths  first  clause,   standing  alone,    'tliat 
married  women  b^-  a-?d  are,  hereby  fully  emancipated  from  all  disability 
on  account  of  co^e.i.'''.u?o, '  would  have  rade  thoroughly  effective  the  purpose 
expressed  in  fbo  tJ.  J;.-.9.     All  that  follo^TOd  rr.f;rely  amplified  the  thought, 
but  each  tona  cf  pa-- tlcniariracion  lay  implioit  within  the  clause  coiotod." 

It  is  clear  thi.t  seocion  6470,  Shan.  Code  1896,   quoted  supra,  does 
not  accomplish  •iC'-.v  abvcgition  of  the  coraincn-iav;  i-ule   in  respect  of  actions 
for  tort  by  either   jipouce  against  the  other.     That  section  merely  denoxmces 
any  perscm  v;ho  ccmnits  an  assault  and  battoi-y  upon  his  vdfe,   for  any  caise 
whatsoever,   as  guilty  of  a  misdemeanor,   and  punishable  accordingly.      In 
connection  with  the   stat^ite  last  referred  to,   and  ch£j>ter  26  of  the  Acts 
of  ISir?,   plaintiff 'a  brief  relies  upon  the  following  of  our  cases:     Queen 
V.  Dayton  Coal  &  Iron  Co.,    95  Tenn.    (11  Pick.)  458,   32  S.  V/.  460,    30  L. 
B.  A.    82,   49  Am.  St.  Rep.    935;  Adams  v.    Insurance  Co.,    117  Tenn.    (9 
Caties)  470,   101  E.   \'I.  423;  V/eelcs  v.  IIcHulty,   101  Tenn.    (17  Pick.)  495,  48 
S.  VI.   809,  45  L.  R,.  A.    185,    70  Am.  St.  Rep.   693;  Railway  v.  Haynes,    112 
Tenn.    (4  Caterj)   712,   81  3.  V/.   374.     But  we  do  not  ujx"-er5tand  the  brief  to 
insist  that  sectioru  5470,  Shan.  Code,   and  the  princi?3es   on  which  he  re- 
lies as  eEtal)lished  by  the  cases  last  cited,  would  avail  to  change  the 
common- law  doctrine   that  ona  spouse  cannot  naaintain  suit  against  the   other 
for  a  tort  coramittad  during  the  e::iEtei:ce  of   the  ms-rriago  relation.     At 
all  events,   in  our  opinion,   there  would  be  no  merit  in  such  an  insistence, 
if  made. 

Examination  of  the  cases  cited  to  sustain  the  existence  of  the  com- 
mon-law i-vile  first  laid  dovn  herein  vail  disclose  a  practically  unanimous 
concrarvonce  of  judicial  opinion  to  the  effect  that  an  abrogation  of  the 
common-law  rule  v;ill  only  be  held  to  have  been  accomplished  by  a  statute 
viion  Eich  purpose   is  clearly  expressed  therein. 

It  has  been  held  in  this   state: 

"That  a  statute  v/ill  not  be  construed  to  alter  the  common  law,  fur- 
ther than  the  act  expressly  declares  or  than  is  necessarily  implied  from 
the  fact  that  it  covers  the  whole  subject-iaatter."  State  v.  Cooper,  120 
Tenn.    (12  Cp,tes)   549,   113  S.  XK   1048,   15  Ann.  Cas.   1115. 

V.'o  must  assume   that   the  legislature  had  in  mind  in  the  passage  of 
the  act  the  fundamental  doctrine   of  the  unity  of  husband  and  v/ife  under 
the  common  lav;,   and  the  correlative  duties  of  husband  and  wife   to  each 
other,   and  to  the  -.iBll-being  of  the   social  order  grov/ing  out   of   the  ©ar- 
riage  relation,   and  that,   if  it  had  been  the  pxirpose  of  the  Legislature 
to  alter  these  further  than  as  indicated  in  tlie  act,   that  purpose  \vould 
have  been  clearly  expressed,    or  v;ould  have  appeared  by  necessary  implica- 
tion. 

Vte  are  not  warranted  in  ascribing  to  the  Legislature  by  anything 


391. 

appearing  in  this  act  a  purpose  to  eiBpo-.ver  a  v/ife  to  "brins  sji  action 
a£,'aiiDst  her  hucTaand  for  rlujuriec   to  her  person  occurring  during  the  cov- 
erture,   thereby  mUcj^s  public    ccandal  of  far.ily  diccord,    to    Cie  hurt  of 
the   reputation  of  husbaud  aixl  \,-ife,    their  fcrniliec  and  comiGCtionc,   unless 
such  pui'pose  clearijr  appears  ty  the   e:.pross  terms   of  the  act. 

It  results   that,    in  cur   opinion,    there   is   uo  error  in  the   jud:^.ont 
of   the  Coui-t  of  Civil  Appeals,   and   the  saae   is   therefore  affirmed. 


392. 


"IlLLlJJ.l  D.  LSGG  et  al..  Appellants,  v.  IffilETLl 
LEGG  et  al.,  Respondents. 

(34  V'ash.  132)   1904. 

Appeal  from  a  judgment  of  the  superior  court  for  Blcagit  county,  net~ 
erer,  J,,   entered  flctofeer  28,  1902,  after  a  trial  on  tiie  merits  before 
the  court  v/ithout  a  Jury.-graatlng  a  joartition  and  ordering  a  sale  of  real 
estate T  sub,iect  to  certain  liens  in.  favor  of  the  defendant  Malena  Less* 
Medified. 

Per  Curiam.— This  -/.■as  an  action  for  the  partition  et  real  estate, 
commenced  in  the   superior  court  of  Skagit  county  by  appellants,  ■.;illiain  D. 
1  egg,  Hattie  Legg,  Cassie  legg,  II  ary  Legg,  Lydia  Staples,  Arthur  L.  Hey- 
wood,  Edgar  A.  Hey\vood,  and  V'illiam  LI.  Lyden,  against  respondents,  I'^lera 
Legg,  Milo  J.  i-egg,  JolmSteen,  and  James  Y/hite. 

Joseph  B.  Legg,   on  the  8th  day  o£  March,   1873,  made  final  proof,  under 
the  pre-eiqption  laws  of  the  United  States,  on  the  northv/est  quarter  of   the 
southv/est  quarter  of   section  22,   tovmship  36  north,  range  3  east,   in  Skagit 
county,  V/ashington.     Pat^t   issued  for   this   land  to  said  Legg  on  February 
25,  1874.     Cn  the  22nd  day  of  September,   1874,   in  Whatcom  county,   this 
state,   Joseph  B.  Legg  and  respondent  llalena  Legg  intermarried,  c.ni,  firom 
that  date  continuously  till  on  or  about  June  1st,   1899,   they  occupied  this 
property  as  their  home.     After  their  marriage,   on  Juno  20,   1884,  Joseph  B. 
Legg  acquired  title  by  patent  to  lot  3,   section  21,  in  toimship  36  north, 
range  3  east,  T/.  l'»,  pursuant  to  the  homestead  laws  of  tie  Uhited  States, 

On  or  about  June  1st,   1899,  Joseph  B.  Legg  died,   intestate,   leavii^g 
as  his  heirs  at  lav.-,  his  v/idow,  llalena  Legg;  Lydia  Staples,  c  sister; 
C  assie,  Mary,   ani  Hattie  Legg,  children  q£   Charles  H;   Legg,  a  deceased 
brother;  Williaam  M.  Lyndeu,  v;hose  name  was  fonnerly  V/illiam  II.  Legg,   gn 
only  child  of  Sdwin  Legg,  a  deceased  brother,  whose  name  was  changed  by  a 
decree  of   the  probate  court   in  Massachusetts  fron  V/illiam  11.  Legg  to 
William  U.  Lynden;  Arthur  F.  and  Edgar  A-  Heywood,    only  children  of  31iza 
p.  Legg-Hey.;ood,   a  deceased  sister;   and  '.7illiam  B.   and  llilo  J.  Legg,   only 
children  of  William  Legg,    a  deceased  brother. 

The  trial   court  found  that,    since  June  1st,   1899,   the  date  of  the  de- 
cease at  Joseph  B,  I'QSgt  respondent  llalena  Legg  has  ^een  in  the   sole  and 
exclusive  occupation  of   the  north%vest  quarter  of  the   southv/est  quarter  of 
section  22,   above  deecribed;    that   the  reasonable  rental  value  thereof  is 
$225  per  annum;   that,  at  the  tin©  of  the  marriage  of  Joseph  B.  Legg  with 
respondent  lialena  Leggt  this   land  was  of  no  other  or  greater  value  than 
0500;   that  since  their  marriage  said  husband  and  v/1  f e  resided  upon,   in- 
proved,   and  enhanced  the  value  of  said  land  by  their  joint  efforts  to  the 
extent  of  0900;   that  the  present  value  thereof   is  02,000;   that  thj   rental 
value  of   such  property,  during   the   time   it  was  occupied  by  intestate  ar.d 
Malena  Legg,   in  excess  of  ta;:es  paid,  was  OlOO  per  annum;   that  Llalena  Legg, 
at  the  tioe  of  the  death  of  her  husband,  had  no  property  of  any  kind  or 
character  except  her  community  interests  in  the  property  above  nair.ed;   that 
she  Yra.E  not  indebted  to  the  community  in  aiy  sum  whatever;  that,   since  the 


393. 

decease  of  Josoi^h  B.  Legs,  Malena  legg  has  paid  the   exi'-ences  of  the  last 
sicten.esE  ard  funeral   of  her  dccoasod  hucband  and  coctc  of   adminictration 
of  the  estate  amount ja^  to  vl50,   the  sum  of  ')lll  general  ta::es,    and  ■JAZ 
in  labor   for  road  proporty  ta::  acsessod  against  caid  northv;ect  quarter   of 
the  couthv/est  quarter  of  section  22;  tliat  in  1901  the  Seattle  and  iTontan^, 
Railroad  Gonipany  instituted  proceedings  to  cocdomn  a  right  of  v/ay  throu^i 
the  real  estate  first  atove  deccrilDed,  making  LTalena  Legg,  T?;""i"r.ran  D.  Legg 
James  Y.hite.and  John  Stocu  defendants  therein;   tlT3.t  all  of   said  x^artios  de- 
faulted  in  such  proceediiags,    eccept  Salens,  Legg,  v/ho  received  from  said 
railroad  company,  a.o  c.TTO.^nsation  for  her  land,  "by  virtue  of  said  proceed- 
ings,  the  sum  cf  O^-iO;    tljat   in  such  condecnation  proceedin:,E  Zlalena  Legg 
neoesaarily  incurred  e::p9nses  anountiug  to  C;158;   that   in  such  proceedings 
appellants  Hattio  Legg,  Cassie  Legg,  Llary  Legg,  Lydia  Staples,  /jrthur  P. 
Heywood,  and  '  illiaiTi  l.i,  Lynden,  ^.'e^e  not  made  parties  therein;    thc'.t,  after 
the  decease  of  Joseph  B.  iQZ&t  Malena  was  duly  appointed  by  the    superior 
court  of  Slragit  ca;nty  as  ac'^inistratrix  of  said  decedent's  estate;   that 
she  thereafter  duly  qualified  in  that  behalf,  and  has  since  been  discharg- 
ed;- that,   at  the   time  of   the  decease  of  Joseph  B   .  Legg,  he  loft  sufficient 
personal  property  belonging  to  the  community  to  have  paid  the  expense  of 
his  last  Eicloaess  and  funeral  ^n^"   the  costs  of  administration, 

The  trial  court  further  found:     "That,   so  far  as  the  public  records 
show  at   the   time   said  condemnation  proceedings  v/ere  pending,  E^id  lialena 
Legg  Was  the  ovner  of  said  property.     That  an  order  was  made  in  said  pro- 
ceedings directing  said  ■jQ'iO  to  be  paid  to   said  r^lena  JjQSSi   ^z.V-  ov'.ev 
v;as  made  v/ithout  notice  to  any  of  the  plaintiffs    (appellants),"     The  court 
also  found,   that  OlOO  is  a  reasonable  fee  to  be  allov;ed  appellants'   attor- 
neys in  case  the  same   is  a  proper  allowance  as  a  part  of  the  costs  herein; 
that  said  property  is   so  situated   that  a  partition  thereof  cannot  be  made 
without  great  preji;dice  to  the   owners. 

On  these  findings  of  fact  the   trial  court  ma:.e  its  conclusions  of  law, 
that  respondent  Ilalena  Legg  is  the  S'ole  o-w-ner  of  said  lot  3  in  section  21 
as  the  survivor  of  the  community  (Joseph  B.  and  I/Ialena  Legg);   tliat    the   ap«i 
pellants  and  respondent  Ililo  J.  Legg  arc  the   owners  of  an  uix.ivided  one- 
half  of   the  northwest  quarter  of   the  southvrest  quarter   of  section  22,    to'.vn- 
ship  36  north,  range  3  east,   and  that  Ilalena  Legg  is    the  ovner  of  'aie  re- 
maining undivided  one-half  thereof;  that   this   tract  of  land  v/as  the  sepa- 
rate property  of  deceased  Joseph  B.  l^ess  in  his  lifetime,  which  is  the 
only  land  and  property  affected  b}/  these  proceedings;  that  respondents 
Steen  and  V.hito  have  no  interest  in   "he  merits  of  this  action;   that  no 
attorney  fees  on  either  side  are  chargeable  against   the  common  estate; 
that  appellants  and  respondent  Ililo     J,  Legg  have  no   interest,  nor  right 
to  participate,    in  the  money  paid  by  the  railroad  company  to  lialena  'Les:^', 
that   she  is  entitled  to  a  cliarge  and  prior  lien  upon  this   land,   on  account 
of  improvements,    in  the  sum  of  v900,  'Ith  interest  added,   aggregating 
vl,165,  with  accruing  interest ■ thereon  at  seven  per   cent,  per  annum,   and 
an  additional   charge  of  ^'77,   one-half  of  the  total  amount  paid  for  ta:ces 
and  betterments  placed  ooi.the  land;  and  that   she   is  to  be  charged  v/ith 
0337.50,   one-half  of   the   rental  value  of   said  lauds  for  three  years. 

On  October  26,   1902,   the  superior  court  rendered  a  decree  ordering 
this  tract  to  be  sold.     Out  of  the  proceeds  of  such  sale,  llalens  Legg  "./as 


394. 

first  to  receive  0904.05,  v/ith  interest  at  seven  per  cent,  from  date  of  de> 
cree;   oue-lmlf  of  the  residue  of  such,  proceeds  '.vas   to  be  x^aid  to  Malena 
Legg,  and  the  other  half  thereof  to  "be  paid  to  appellants  and  Milo  J.  Legg. 
lialena  Logs  '''as  charged  vi  th  one-half  of  the  costs,  and  appellants  and  llilc 
J.  Legg,  \7ith  the  otlier  half.     The  court  refused  to   ta:i  any  attorney  fees 
as  a  part  of  the  costs  on  either  side.     Plaintiffs  allege  exceptions,   and 
appeal  to   this  court. 

/ippellants  contend   that  the  trial  court  erred:      (1)   in  not  alla7ing 
them  an  attorney  fee  of  OlOO  as  a  part  of  the  costs;    (2)  in  refusing'   to 
allov/  them   their  share  of  the  money  received  by  respondents  for  the  right 
of  v;ay  frora  the  railroad  company;   snd   (3)   in  allovsing  llalona  Legg's  charges 
against  this   tract  of  3and  on  account  of  iirQprovements  and  tenies. 

(1)  Bal  Code,  Sec.   5604,  provides: 

••The  costs  of  partition,   including  ffies  of  referee  acd  other  disburse- 
ments, shall  be  paid  by  the  parties  resi^ectively  entitled  to  share  in  the 
lands  divided,   in  proportion  to  their  respective  interests  therein,   ad 
may  be  included  and  specified  in  the  decree.     In  that  case  there  shall  be 
a  lien  on  the   several  shares,   an?,    the  decree  mi:y  fee  enforced  by  execution 
against  the  parties  separately,     '..hen,  however,  a  litigation  arises  be- 
tween some  of   the  ptrties  only,   the  court  m^  require  the  e::pense  of  such 
litigation  to  be  paid  by  the  parties  tliereto,  or  any  of  them." 

The  question  presented  by  appellants*   councel  is  whether  the  above  pro- 
vision authorizes  the    ta::ation  of  attorneyls  fees  as  a  part  of  the  costs 
in  partition  suits.     Some  of  the  authorities  cited  by  ax^pellcJits  from 
other  states  hold  that.  Under  the   general  term  "'costs,"  attorney!s  fees 
may  be  tczie:.  in  partition  cases;  vAiile  the  vast  najor.ity  of  courts  treat 
this   subject-matter  as  regulated  v;holly  Ijy  statutory  provisions,  refusing 
to  ta:s  such  fee::  unless  specially  named  therein.     Tlie  recovery  of  costs, 
by  that  nome,  -."as  uiumo.-ii  to  the  common' la"..'  till  regiilc.ted  by  statute,   in 
the  courts  of  la"\/.     T".ie  alla;'L-:nce  of  costs  in  any  case  depended  entirely 
on   fiae  tenrs   of  thS  statute.     6  line.  Plead,  a  Prac.  p  110.     This   court, 
in  Truiiible  V.   Truvnble,   26  '  esh.   135,   66  Pac.  124,  decided,  in  accordance 
with  this   rule— in  enforcing'.-  jud:,ment   lien  for  alimony  in  a  divorce  suit 
against  certain  propei ty— th^at,  -.-Isn  there  wcs  no  provision  for  an  attor- 
ney fee  by  the  ten-ns   of  the  original  decreo,   it  was  error  to  allow  more 
than  the  statutory  compensation  as  provided  in  EalJ  Code,  Lee.  5165.     '.'e 
thiiil:  the  rule   enunciated  in  that  case  on  this    subject   is  correct,    and, 
\/Aen  applied  to  the  case  at  b^jr,     ould  not  authorize  us  in  allowing  the 
attorney  fee  -hich  appellants  no./  contend  should  be  cha-rged  against  the 
common  estate  of  tiie  parties  to  this  controversy;  more  especisll"  in  view 
of  tlie  statute  'hich  proni^ides  that  canponsation  of  attorneys  shill  be  left 
to  the  agieement  of  the  parties. 

(2)  On  the  seconc.  contention,  we  are  of  the  opinion  that  Lialena  Legg 
should  account,  under  th3  fixf-iugs  of  the  trial  court,    to  the  appellants 
(excepting 'illiam  I-.  I'Osa)  *   as  heirs  st  la'  of  decedent,  Jose^:h  3.  Legg, 
above  aanied,  -.fr.o  \.'ere  not  parties  to  the  condemnation  proceedings  in- 
stituted by  the  Seattle  aix.  liontana  Railroad  Company,  for  their  interests, 
respectively,  as  such  heirs,   in  the  money  received  by  her  from  the  rail- 
road company,   after  dedujoting  tlie  expenses  necessarily  incurred  in  connect- 


I 


y^    ^^ 


-;;^^^^' 


395. 

ion  with  sucli  condemnation  proceedings.     The  public  records  showed  tliat, 
at  the   time  of   taae  condemnation  li-oceedings,  Ilalena  Legg  \7as  the  c.mer  of 
tho  land   talsn  as  a  risht   of  ■v-'ay,   and.  she  received,   the  money  as  the  value 
of  the   real  estate  condemned,  and  not  sin^ply  as  payment  for  her  interest 
therein.     This  seems  to  be  the  correct  interpretation  of  the  find.ings  of 
the  trial  court  in  that  "behalf.     If  this  be  true,   it  is   tjgit  fair  sad 
equitable  tliat  Ilalena  iegg  should  be  treated  as  a  trustee  for  these  heirs, 
with  reference  to  thetr  respective  interests  in  that   fund,     '■'.'hether  these 
appellants  are  coucluc.ed  by  the  judgnent   of  the   superior  court  in  the  con- 
demnation proceedings   instituted  by  tlji.  railroad  compapy,   is  not  a  material 
question  in  the  controversy,  as  presented  by  tliis  record.     These  appellant;; 
have  the  undoubted  right  to  treat  the  proceedings  as  valid,  s.tS.  call  upon 
Ilalena  I'es:;^  foi-  an  accounting  cs   tlieir   trustee.     Appellant  l^illism  D.  Legg 
is  not  entitled  to  sloaro  in  this  fund,   as  he  -.as  a  party  to  the  condemnat* 
ion  proceedii2gs,arid  defaulted  therfeaa. 

(3)     /ippellants'   counsel  concede  i..  their  argume'.it   that  respondent 
Ilalena  Legg  is  entitled  to   a  credit  of  one-Iialf  of  the  (.IS-i  paid  for  tccres, 
which  inuved  to  the  benefit  of  the  other  1-jsirs  of  deceased  Jos3i:3h  B.  Legg, 
so  no  discussion  of   that   cuestion  is  necessary.     We  are  of  tire    opinion,  h 
however,   th.a.t   the  trial  court  ccsxiitted  no  error  in  allo\7ing  Ilalena  legg 
the  sum  of  O^OO  and  interest,  as  a  lien  snd  charge  against  the  land  to  be^ 
deducted  from  the  proceeds'  of  the  sale,    for  betterments  placed  on  the  laad 
datring  the   e:ciste;xe  of  the  community.     The  decedsnt  and  Malena  Legg  had 
by  fceir   joint  efforts  and  labors,  added  tliat  sum  to  the  value  of  this 
property.     The  sppellsnts  v;ere  not  co-tenants  of  the-  land  vdth  Ilalena  Legg 
at  the  time  \/l«2n  these  inTprovementc  -/ere  placed  thereon  by  the  commxinity. 
They  had  no  estate  or  interest  in  this  property  at  that  tirce.     Their  in- 
terests as  heirs  did  not  attach  to  the  estate  of  Joseph  B.  Legg  before 
the  time  of  his  death.     In  ecuity  and  fairness  to  li^leua  Legg,  as  the  sur- 
vivor of  the  Gora.:iunity,    slis   slaould  be  reimbursed  for  betterments  placed  on 
the  land  by  the  coraaunity,  a^  agrinst  parties  who  contri'buted  nothing  to- 
wards improving  th-e    e^mc  or  eahancing'  the  value  thereof. 

In  S-urr'-i  v.  Vinston,   66  Te-.   525,   1  £.  V;.  527,  the  court  uses   tJie 
folla\'ii:!g  lEiiguage:      "I  t  is  well  settled  that   separate  estate  of  one 
member  of  the  community  must  reimbiu'se  the   xmrnunity  for  s.ny  proper  im- 
provements mau6  in  good  faith  -cQan  the  separate  estate  ■,.lt'.-i  ccmmunity 
fundts."     Citiug  Pace  v.  "^.ice,   21  Te::.   66;  Bond  vl  Kill,   37  Te::,   626.     See 
furtlier,  Glift,  v.  Glift,   72  Te::.   144,   10  5.  V;.  558.     Applyiu.3  this  rule 
of  la'-  to  the  facts  in  tiie  case  at  bar,  iialena  Legg,  as  survivor  of  the 
comiTiuuity,   is  entitled  to  reimbuisement  from  fiie  sapai-ate  ettate  of  Jos- 
eph B.  Legg,   decedent,  as  decided  by  the   trial  court. 

The   judg-.ieut  of  the  superior  court  s'.iould  be  modified  aS  in-.icated 
in  this  opinion,  ?  n".  the  case  is   therefore  rer.i£jided  ^vith  directions  to  the 
trial  court  to  enter  tlie  i5:oper  decree,     neither  appell?n.ts  noi-  respond- 
ents sliall  recove-   costs  on  this   appeal. 


62LAP33ER  VI. 
CITATl    ORS. 

Rights  of  Survivor. 

Kohny  v.  Durbar    (1912)  121  Pac.  544   (Idaho) 

Griffin  v.  vrarburton  (1900)  23  Wash.  231. 

Nishimoto  v.   Carlton  (1919)                           '  107  Tash.  555. 

(a)  Right  to  convey  in  payment   of  debts. 

Crowe  Co.  V.  AdMnson  Construction  Co.  (1912)     67  Wash.  420. 

Re  Field's  Estate   (1903)  33  Wash.  63. 

Lawrence  v.   Bellingham  Bay   (1992)  4  Wash.  664. 

(b)  Right  to  administer. 

Fort's  Estate  (1896)  14  Wash.  10. 

Daniels  \f.  Spear  (1911)  65  Wash.  121. 

Ferrell  v.  Lord  (1906)  43  Wash.  667. 

Sawyer  v.  Vermont  Trust  Co.  (1906)  41  Wash.  524. 

Morris  v.  Warwick  (1906)  42  ^ash.  480. 

Brown  V.  Brown  (Conn.)  89  Atl.  889. 


Cik.-^         .    o  ■ — .    ,        ]-,    t         ^   \Te  <--«.((  V)    ^  C  t>  v^    t 


FURRH  iViro    OTJZHS   V.  V:iism  AUD   CGKISE.  \  sa-  w«.t 

(Snpreae  Court  of  To"as.      Octoter  15,   1886.)  (v\  q.v  vi»^ 

(66  Tex.   521.) 
(S.V/.Rep.   527) 

Error  from  Harrison  county. 

Etayton,   J.  — Tliic  j-ction  \7as  trouslat  "by  three  cMldren  of  "lary  E. 
\7aslcom,   to  recover  cix  acres   of  land  xjhlch  was  the   separate  propert;^'  o^ 
their  mother,  vAio  died  in  Ilarch,   1872.       Tlie  defendants  assert  title 
througi  a  v/arranty  deed  rnr-de  by  S,  S.   T;^sl:om,  Sr.,  \7liD  was  the  father  of 
the  plaintiff.     The  deed  throu^a  \7hich  they  claim  v.tis   eicecutod  in  February, 
1877.     Ajnona:  other  defenses,   the  defendants  alleged  t]iat  the  father  and 
mother  of  plaintiff  v.ere  aarried  in  the  ^'ear  1860,  and  that  during  the 
marriage,   about  the  year  1867,  S.  E.  Uascom,  Sr.,   with  community  funds, 
erected  on  tte  land   in  controversy  a  storehoi^e,    warehoiase,   and  dwelling, 
the  value  of  -..hich  v/as  alle3;ed  to  be  about  01.670,  acd  that  the  value   of 
the   lands  v/ithout  tl:e   improvements  did  not  e:::ceed  $90.     They  further  al- 
leged that  Ilary  E.  V/asl-om,  at   the  time   of  her  d.eath,   ovaaod  2,160  acres 
of  lard  in  one  body,   including  tte   si::  acres  in  controversy,  consisting 
of  six  contiguous  tracts;   that  five  children,   the   issuo   of  the  marriase 
of  herself  and  S.  V.  Tvasliom,   survived  her,    of  whom  two  liad  died  -.Tithout 
issue,   CM},  unmarried;  that  from  these  ohildi-en  Sn  E.  YJaskom,  Sr.,   inher-  >' 
ited  one-fifth  of  all  of  these  sin  tracts  of  land,   of  ti:e  value  of  §2,590, 
as  d.id  he   inlaerit  a  life-estate  in  one-third  of  all     the  land,  from  his 
wife;      that  the   interest   thus  held  by  S.  E,  Uascom,  Cr.,   in  the   lant^.s 
^niiich  liad  been  the  separate  proper^/  of  liis  \dfe,   far  excoedsc.  the  value 
of   the  interest  of  tlae  plaintiffs  in  the  si::  acres  of  land   in  controversy; 
and  tlEy  as::ed  that  the   interest  of  S.   S.  r;as>om,  Sr.,    in  the  si::  tracts 
of  land,   so  far  as  necescai-y  to  protect  their  title  to  the  sir:  acres,  be 
•:?iven  to   tl:em  by  Setting  apart  to  them  the   land  in  controversy.     S^  E. 
Was]:om,  Sr.,  was  mac-.e  a  party  defendant,  and  his   insolvency  v/as  alleged. 

A  demurrer  was  sustained  to  so  much  of  the  answer  as  cou^t  the  pro- 
tection above  stated,     '.'e  are  of  tlE   opinion  that  this  '.--as  error;  for, 
upon  the  death  of  tre  two  children  of  S.  E.  "^askom  and  t/ife,  he   inherited 
ono-ha3f   of  the  estate  -uviicla  they  derived  by  inheritaxce  from  their  mother, 
as  v/ell  as  one-half  tie   interest  viiich  tic   one  child  derived  from  the   other, 
and  thus  he  becane   a  tenant   in  coiiraon  \;ith  the  plaintiffs.     Vliile  a  co- 
toncnt  lias  no  pov;er  to  divest  the  title  of  his  co-owners  by  selling  a 
specific  part  of   the  common  property,  yet  it   is  well  establislBd  that  a 
court  of  equit^^  -..111  protect  such  a  purchaser,   if  this  cczi  be  done  v/ithout 
injur^^  to  the   other  o\uaers,   by  setting  apart   to  the  vendee  of  the  co-ten- 
ant tl-B  particular  tract  boxjght .     The  pleading  to  which  the  demurrer  was 
Stic  tailed  malBs  a  case   in  wliiCi  s^xh  relief  could  properly  be  granted. 
'That  tl3  propertj-  alleged  to  be  c\vned  by   fiie  f atbsr  and  the  plaintiffs 
consists  of  several  tracts   of   lant".  furnishes  no  reason  vAiy  tl-£   interest 
of   the  fatter  in  all  of  t::em  may  not  be  satisfied  by  vesting  in  the  defend- 
ants, his  vendees,   the  six.  acres   in  controversy,    if  its  value  shall  be 
shovm  to  be  equal  to  his  interest  in  all  the   tracts,   or  \;liy  this  should 
not  be  vested  in  then  as  a  part  of  that  -.Mch  the  father  would  be  entitled 


•^ 


'.  5    .    1. 


TUk- 


i«"?  T 


'.!i'.i'.i3i  vi- T  '  "  -■•'.•.  i 


397. 

to  out  of  the  entire  property  of  which  Ihey  are  oo-owners,    if  his  inter- 
est .in   ttie  entire  property  ercoods  in  value  that  in  controversy;  nor  doeB 
the   fact  that  cne,    or  even  "both,    of  tto  children  from  whom  S.  E.   u'aslcom 
took  "by  inheritaace  may  have  died  siaco  he  made  the  deed  throu^  which 
the  defendants  claim,  affect  the  right  of  tlB  parties  to  the  protection 
indicated,    if   the  facts  shall  appear  as  pleaded. 

V/e  are  further  of  the   opinion  that  the  court  erred  in  sustaining  the 
detnxirrer  to  sv   rjch  of   '.he  answer  as  set  up  the  fact  that  the  improvements 
on  thB    lasd    in  controv-r.-y  T.ere  made  \7ith  corcmxinity  funds  helonging:  to 
the  common  estate  of  n'a  '■nai  art.  his  wife;  for  whatever  claim,  even  though 
equitable   only  it  may    '--'•>  which  E.   E.  TJanlccm,  Sr.,  had  growing  out  of   that 
fact,   vests   in  the  r'.efM.idants  through  his  v;arraaty  deed,  and  they  may  novr 
assert  it   in  the  ac. j :i£ t.^sit   of  equities  'vhich  arise  bet',7e9n  the  parties 
in  reference  to  the  setring  apart  to   the  defendants  of  the  land  in  contro- 
versy,  or  to  cseet  the  claim  made  against  them  for  rents,   should  it  be 
found  on  the   trial  that  equities  exist,  but  that  they  are  not  entitled, 
from  any  caise,   to  have  the  lazxl  set  apaT":  to  them.     Vihen  the   improvements 
v^ere  made,    if  irade,    as  alleged,  v/ith  co^TintaTity  funds,   this  gave  no  right, 
title,   or  interest  in  or  to  the  lard   to  the  community;  and  S.  E.  Waskom, 
Sr.,  from  the  simple  fact  that  the  improvements  v/ere  so  made,  omild  not 
h%ve  acquired  title  to  any  part  of  the  lanl  oaTvhich  they  stood;  for,   as 
said  in  E ice  v.  Rice,   21  lex.  66,   such  improvements  becoite  "attached  to 
the  soil,  and  cannot,    iu  the  natiare  of  things,   be  divisible  in  specie 
vtien  one   of  tire  joint  ovAi.ers  has  no  in:;ere£t  in  the   lart!.  upon  \*iich  they 
have  been  erected.     Hence  results  the  rule  that  the  c  orafflunity  estate  must 
be  reimbursed  for  the  cost  of  tie   buildini:^s  erected  by  joint  labors  or 
funds  upon  the  separate  property  of  one   of  the  spouses,  and,   in  effect, 
aais  vests  tie  iraiprovement   in  that  spouse,   and  entitles  the  other  to  one- 
half  of  ths  cost."     V.hen,  hov/ever,  S.  S.  T7,askom,  Sr.,  by  inheritance  from 
his  diildrea,  becacB  a  co-tenant  with  the  plaintiffs  in  the  laaf.s  in  con- 
troversy as  ^vell  as  other  lanls,   and  tlius  becaae  entitled  to  partition, 
we  see  no  reason  why  his  vendees',  who  are  entitled  to  be  subrogated  to 
all  his  riJitE  by  reason  of  his  v/arranty  deed,    the  covenants  of  -liiich 
v/ould  be  broken  if  the  property,   as   it  stoa'.  at  the    time  he   sold,  did  not 
pass,  may  not  ask  that  the  same  rule  be  applied  as  mijat  be  were  the  suit 
belo\7  betv/een  S.  E.  TSaskom,  Sr»,  and  tloe  plaintiffs.      It   is  well  settled 
that  separate  estate  of   one  member  of  the  corrmunity  must  reimburse   the 
community  for  any  propsr  improvements  made   in  good  faith  upon  the  separate 
estate  --.ath  community  funds.    Rice  v.  Rice,   21  Tex,  §6;  Boni  v.  Hill,   37 
Tex.   626. 

The  ansu«r  of  tlie  defendants  alleged  that  Jai?.es  Turner  asserted  soise 
claim  to  the   land   in  controversy,   and  aslsd  that  he  be  made  a  party,   and 
that  he  assert  in  the  action  whatever  claim  he  might  have.     Turner  appear- 
ed,  aa.  filed  a  general  demurrer,  which  v,\\r   sustained  by  the  court,   ar.d 
jut'.gment   entered  that  the  demurrer  be  sustairBd,  and  that  Turner  "go 
hence  vdthout  day,"  and  recover  costs.     The  defendEints,  by  their  answer, 
asserted  title  to  tie   laii'.,   and  sou^Jit  to  establish  it  against  the  plain- 
tiffs, an?,  also  against  Turner;  ajxl  v;e  are  of   the   opinion  that  it  was  er- 
ror to  sustain  the  general  demurrer  filed  by  Turner.     If  he  really  assert- 
ed title  to  the  land,    or  any  part  of  it,   it  v.as  the  ri^it  of  the  defend- 
ants,  ia  this  action,   so  far  as  can  be  seen  from  the  pleadings,    to  h-ave 
his  claim  as  vrell  as  that  of  the  plaintiffs  adjudicated.     If  he  really 


398. 

I 

maxlo  no  claim  to   the  land,    he  chould  have  filed  a  disclainer-      If  be 
thou^t   the   averments  as  to  the  ch.a;.'acter  or  extent   of  the  claim  asserted 
■fey  them  not  saffioiently  specif i3,  ho  should  have  urged  this  ground  hy  a 
special  deimrrer. 

The  defendants  pleaded  that  the  mother  of  the  plaintiffs  died  tes- 
tate,  that  her  v:ill  had  "bc-^n  prclDated,    caad  tiiat  thereby  she  devised  th; 
land    in  n  jntroversy  to  hur  hushard,  S.   E.  UaRkom,  Sr.;     "but  the  ansv/er 
did  not  aver  that  tho  will  was  an  instranent   in  v/riting.     This  v/as  trade  a 
ground  of  special  detrurr-'jrj   \Thich  was  s-uGta.nrsd,  ard   on  tho  trial   the  de- 
fendants offered  to  prc=-/r    srch  inaldnis  sr.d  probate   of  a  nuncupative  vtill  by 
which  all  the  prorerl:y  of  it'-s.  T7askom  was  devised  to  lier  husband.     Oils. 
evidence  the  court  borjlow  rdjected,     Y,'e  see  no  reason  to  doubt  the  correct- 
ness  of  tine  rulings  of  t";,s  court  on  the  deratirrer,  and  aomiscion  of  evi- 
dence.    Since  tl3  case  of  Lov/is  v.  Aylott,  45  Te::.  190,    it  must  be  held 
the   lav  of  this   state   that  real  estate  cannot  be  devised  by  nuncupative 
will.     It   is  urged  that  the   lacd   in  controversy  is  situated  v/ithin  the 
ri:;;ht  of  way  of  the   Texas  i  Pacific  Rail-.-ay  Company;    that  the   improvements 
were  placed  on  the  land  by  tho  permission  anc".  license  of  the  railv/ay  com- 
pany; and  that  they,   therefore,  did  not  become     a  part  of  t3ie   land  on 
which  tliey  were  erected,  but  remain  personal  property,  and  therefore  pass- 
ed to  S.   E.  Uaslrom,  Sr.,  by  the  nuncupative  will  of  his  wife.     T/e  are  of 
the  opinion  that  this  position  cainot  be  maintained.     T/hether  buildings 
erected  upon  the  Ian.,  of  another  are  fixtures   or  not,  must  be  determined 
by  the  relation  existing  between  the   ovazer  of  tho  fee  and  the  person  who 
maies  ths   improvement,   an:,  upon  the  fants  vhich  may  cvul once  their   inten- 
tions  in  reference  thereto,   and  not  upon  the  permission  or  license  of  one 
holding  only  a  q-ualified  right  to  use  the  land  for  a  specific  purpose, 
and  embracing  that  for  riiich  the   improvaitients  were  made. 

For  tl3  errors   in  the  rulings  of  tls  court  below  -.Mch  have  been  con- 
sidered,  the   judgment  will  be  reversed,   arx.   tlie  cause  remanded.     It   is   so 
ordered . 


399. 


ll'ICVTTi:  aad  others  v.  CUIirillTGS  aJid  Otherc* 

(68  Te::.  599,   1887) 
S.  V/^  513. 

Error  from  district  court,  Ilencersoa  county. 

Gaines,  J.     It  v^ould  svibserve  no  useful  purpose  to  discuss  the  num- 
erous assignments  of  error  found  in  the  record  in  this  case.     V.'b  shall 
tlierefore  consider  only  such  points  raised  by  the  h.  ief  of  appellants  as 
"./e  deam  necessary  to  a  disposition  <rf  the  case  in  this  court,  and  in  the 
district  court  i^pon  another  trie.l. 

The  court  dif.  not  orr  in  a.-cludiu^-  the  deposit ioa  of  the  v/itnese 
Phillip  Claiborne,     fh©  deposition  cho\7S  that   fiie  alleged  transfer  of  the 
coi-tificate  from  Brooks  azid  \ifQ  to  Barizza  was  in    .Titian,  and    /as  still 
in  erzistence.     Tiie  v/ritten  coasreyances  -jere   tiio  best  evidence  of  the  tiians- 
action,   and  it  was  not  error  to  Kiolude  the  Parol  testi.aony  of  ftie  \^itness 
concerni23^  it. 

Ue  think,  hov/over,  there  \.'as  error  in  the  char^'O  of  the  court,  and 
in  order  to  itial©  tliis  clscr  it  vill  be  necessary  to  state  briefly  some  of 
tlie  facts  of  the  case.     Tloo  plaintiffs,  \ho  are  appellants  here,  sued  to 
recover  a  tract  of  land  locr.ted  by  virtua  of  a  cerif  icate  granted  to  Dl- 
wa»d  Pattarson  ac  the  liead  of  a  family.    About  the  year  IffiS,  Bdv;ard  Pat- 
terson lasrried,  in  La'^ence  county,  Alabama,  ITancy  /enninss,  ^iio  \gs  a 
N/idow,  sJoL  hai  one  child,  then,  living,  by  her  deceased  husband,     3feat 
child  vras  A.  J.  J"ainin£s,  'ixo  is  one  of  the  plaintiffs  in  this  suit*     3cV 
*.;ard  Patterson  ccm©  to  Te::as,  and  participated  in  the  -..s-r  of  independence. 
His  \/if e  did  not  accoinpany  him,  but  rotaained  in  Alabsma,  '■•here  she  obtain- 
ed a  decree  of  divorce  from  iiiu,  ■  hioh  v/as  perfected  by  aa  act  of  tl*e  le^ 
islature  of  fliat  state  in  1859.     It  is  to  be  presumed  from  the  lensuase  of 
:^e  act  that  the  la\/  required  botl.  the  decree  of  a  court  anc.  the  legist 
lative  sanction.     Tlie  certificate  issued  to  Patterson  in  1858.     Ee  mar- 
ried a.  second  -.ife,  named  Alethe;,  in  the  f:ll  of  1640;  cj,ed  in  1841. 
Haacy  Patterson  had  on©  child  by  Dcl\;ard  Patterson,  -./"no  died  about  18«6. 
His  name  ',/as  '.illiaia  F.  Patterson.    ?he  nt.rried  c^-^.in  about  1841,  an:"-  left 
as  the  iasue  of  that  uaxi-icse,  E:£.llie  J.  Earrey,  v-ife  of  Henrij,'  ?.  Sci-vcy, 
v/ho  are  the  other  tvAj  plaintiffs  in  this  suit.    Unless  lT£.ncy  Patterson 
Vfa.s  divested  of  her  risiit  tt>  the  cortifiC::.ts  by  the  decree  6f  divorce,   it 
is  evident  that  slie  vrc.s  entitled  to  oiie-litrl-r  of  tho  cartifio^'-te. 

There  is  no  proof  in  the  record  that    :iV/ard  Patterson  over  clcimed  to 
to  have  any  otlier    .Ife  vintil  his   secorr'.  Tnarrisge  in  1840,   lon^  after   tlae 
certi^oate  issued.     Tlie  certificate  beirg  personal  property  unc.er  the 
fourteenth  section  of  the  act  of  January  20,   1840,  his  lv:lf  of   it  beocnie 
the   C0j.MUi.ity  pi-operty  of  himself  and  his  cocoad  \.'ife,  upon  his  xnarri?i'e 
to  her.     Hart.  Di-.   2410;  1  Pasch.  Dig'.  776,  note,  and  1048;  Fortis  v. 
Parker,  22  Te:;.   699.     Tlae  decree  of  divorce  contained  this  provision:     "It 
is  furthar  decreed  s.nd  adjudged  that  all  tha  property  that  the  said  Kancy 
brou£ht  to  her  s-rid  husband,  Sd">''ai-d  Patterson,  by  the  raarriaee,  be  vested 
in  her  as  her  6sti-.te-  and  separate  estate;"     and  it  seeras  to  have  been  con- 


400, 

tended  in  the  court  belov/  that  the  effect  of  this  "viaa  to  diTost  th«  di- 
vorced wife  of  her  interest  in  the  certificate,  l)ut  v;e  do  not  so  regard 
it.     The  deci-ee  refers  to  no  property,  iKccept  that  iferoufjht  ty  her  i^to 
marriage,  and  v/e  have  no  right  to   infer  that  her  ri;^ts  in  any  other  v/ero 
adjudicated.     The  court  in  itc  charge  left  it  to  the  jury  to  say  whether 
the  rights  of  ITaacy  iatterson  in  the  certificate  wore  settled  "by  the  de- 
cree or  not.     This  v;as  error.     It  was  the  provicce  of  the  court  to  con- 
strue the  decree,  and  if  any  question  were  made  as  to  its  effedt  upon  her 
rights   in  the  certificate,   the  court  should  have  instructed  the   jury  that 
har  interest  in  that  property  v/as  not  affected  ty  that  adjudication. 

It  is  assigned,   in  suTsstance,   that   the  court  erred  in  chargii^g  the 
jury  that,  under  a  certain  state  of  circumstances,  plaintiffs  \/ore  Taarred 
of  a  right  of  recoverjr  ty  an  adverse  holding  of  the  certificate  for  a  per- 
iod of  tv/o  years.     It  is  not  clear  to  us  that  the  court  so  charged,   though 
we  infer  from  the  lejaguage  of   the  instructions  that  the  Gourt  was  of  op  in* 
ion  that  if  Alethe-.  Brooks  got  possession  of  the  certificate,  and  held 
it  as  her  own,  distinctljr  repudiating  the  claiiX   of  ilancy  ?nd  ".'illiara  Pat» 
terson,   and  of  Oheir  heirs,   thea  her  title  to  the  certificates  cB.y  have 
been  perfected  ty  tlie  statute  of  limitations.     If  so,  this  -was  ex-ror.     The 
cortificatA  itself  is   a  more  evidence  of  a  ri^^t  to  land,  \*ich  right,   in 
contemplation  of  la"',   is  personal  property,  "but  the  certificate  is  not   the 
property  itself.     Shefflet  v.  llorell,  4  E,  'T.  ?,ep.  843.     iTo  adverse  hold- 
ing, hov.ever   lon^j  the    time,   gives  title  by  limitation  to  the  certificate, 
or  the  right  evidenced  by  it,  as  against   the  true  ovaier.     Tliis  has  been 
ei-i^ressly  decided  by  this  court,  BarVsr  v.  ^•.eason,  6^  Te.:.  407.     it  is 
due  to  the  learned  judge  who  tried  the  case  in  the  court  below  to  say 
that  the  opinion  in  the  case  cited  hac-  not  been  delivered  when  the  charge 
under  consideration  \.'aE  given, 

Appellants*  t-i/ent^r-secoad  assignment  of  error  complains  of   tl:ie  action 
of  the  court  in  giving  a  special  chai'ge  at  the  request  of  defendants.     In 
this  charge  the   jury  v^ere  instructed,   in  effect,  that   if,  upon  the  death 
of  Sdward  Patteison,  his  \7iflflprr  paid  his  funeral  expenses  and  other  com- 
munity debts  "out  of  her  o- n  means,"  then  his  heirs  could  not  recover  the 
certificate  in  question,   or  tloe  land  located  thereon,  until  they  had  first 
roimburseu  her;   cnc.  tltat  the  widow  load  tlie  right  to  hold  the  certificate, 
and  lan^v  loc;.tec.  by  it,  ^nd  to  cell  the   same  for  her  reimbursement.     The 
jui-y  are  also   instructed  in  the   seme  charge  tlriat   "if  the  plaintiffs,  or 
those  ujider  -.Lorn  the;-  claim,  fcie.',  or  might  iiave  Icnovrn  by  ordi::£.ry  dil- 
igence, the  facts  -.rith  rei'e-.euce  to  said  certificate,  and  their  interest 
tliereiu,  ;,nd   tliat  cs  a  fact   the   a.ld  .aethea  (the  wider)  was  claiming  to 
be  sole  owner  t'nereof,  and   tliat  aE^  »uch  *Jhe  ei:ercised  all  rxts  of  orrner- 
Ehip  over  i3.iC.  certificate  for  more  tiiaii   ten  years  prio:.    to  its  location, 
then  ai3y  suit  of   said  pleintiffc  after  tliat  ^--ai  iod,   against  any  person 
claiming  said  land  located  under  said  certificate,   is  but   the  assertion 
of  a  stale  demand,  and  you  -.dll  find  for  defendants  against  all  the  plain- 
tiffs,'*    These  instructions,  as  applied  to  the  facts,  are  misleading,   and 
erroneous  as  propositions   of  la".;.     Alethe.-  3rooi33   testified  that  she  paid 
all  the  debts  against  Hdward  Patterson*s  estate,  jnd  his  btuial  e:i?enEes, 
and  e::pen£es  of  last  illness,  ainounting  to  rbout  '^100.     Lhe  now!^ere  says 
this  was  paid  from  lier  separate  estate.     If  paid  frorri  tu\&  community,   then 
she  certainly  had  no  claim  against   the   certificate  by  reason  of  the  pay- 
ment,    if  tlie   debts  --.'ere  paid  from  her  a.-u  sepai'ate  funds,  then  at  most 


I 


401. 

she   vould  hivo  had  a  claim  for  re imtvc: percent  from  Pattercon's  heirs,   in 
any  event,   for  a  partition  of  the  proi^orty.     A  payment   of  community  debts, 
in  1841,   gave  her  no  rij^ht  to  cell,   in  1883,   any  greater  interest  in  the 
land  located  "by  virtue   of  tlie  certificate   than  she  acquired  in  the  certi- 
ficate hy  virtue  of  her  jrarriage  vath  Patterson.       The  plaintiffs  them- 
selves, ac  the  heirs   of  W.  F.  Patterson,  who  was  the  heir  of  Bdv/ard  Pat- 
terson,  were  the  holders  of  the  legal  title,  and  the  doctrine" of  stale 
demand  v/as  not  applicable  to  their  claim.     Edwards  v.  Brc\m,  4  S.  U.  Rep. 
380,  and   5  S.  Tr.  Rep.   87. 

Appellants  also  complain  that  the  court  erred   in  instructing  ^^  jury 
tliat  because  I.Irs.  Harvey' £  coverture  had  not  been  pleaded,   therefore   th^y 
should  not  consider  that  fact  in  deterraining  tlB  pleas  of  limitations  as 
against  her,    and  counsel  agree  that  since  the  fact  of  her  marriage  had 
"been  proved  v/ithout  objection,    she  \vbs  entitled  to  the  benefit   of  the 
proof  without  any  allegation  in  support.     But  the  ruling  of  this  court   is 
otherwise.     Banking  Co.  v.  Stone,  49  Teoz.  4. 

Ihere  are  rrany  other  cuertions  presented  by  the  acsignments   of  error, 
and  the  brief  of  counsel,  but  in  our  opinion  they  are  not   liable  to  arise 
upon  another  trial.     They  are,   therefore,  not  considered  in  this  opinion. 

For  the  reasons  pointed  out  the  judgment  is  reversed,  and  the  cause 
remanded . 


402, 


CLIFT  et  al.  v,   CLIPO?  et  al. 

(Supreme  Court  of  Texas.     Uoveiribor  27,  1888.) 
(72  Tex.   144.) 
(S.V/.Rep.  338) 

Appeal  from  district  court,   Ellic  county;  Aason  Rainey,  Juclse. 

Action  ty  Ilarvin  Clift  and  others  againct  Leonora  Clift  and  others, 
for  partition  of  land   of  v;hich  Stephen  A   .   Clift  died  seiced,  and   for  the 
cettletrent   of  claims  "by  the  plaintiffs  for  improvementc  allegod  to  liave 
loeen  made  with  community  furdc  of  tiio  second  marriage  of  decedent  iipon 
the  separate  property  of  tls   first  wife  ai^d  th5  community  property   of 
the  first  vidfe.     From  the  jud^jiient  rendered  tl:e  defendants  appeal. 

Saines,   J.-- StephenA.   Clift  married  in  the  year  1659.      In  February, 
1871,   tl-£  v/ife  of  that  marriage  died,    leaving  three  children,   Viiio  are 
the  appellants  in  this  court.     In  the  latter  part  of  the  year  1871  he 
married  a  second  v/ife,    the  appellee  Leonora  Clift,  and  died  in  1882, 
leaving  four  children  of  tire  second  raarriase .     At  the  time  of  the  doath 
of  the  first  wife  there  v/ere  certain  lots  in  the  then  tovai  of  T/axahadrie 
upon  which  he  resided  with  his  family  and  did  business  as  a  merchant. 
Ke  continued  in  the   occupation  axd.  use  of  those  lots  until  his  death. 
Some  of  the  lots  v/ere  of  the  s^arate  property  of  tlB  first  v/ife,  and 
others  iwere  of  tlx)  community  estate  of  himself  and  his  second  \7ife. 
Eiis  suit  v/as  brou^t  b^   the  second  v/ife  anc.  her  children  against  the 
children  of  the  first  marriage,    for  the  purpose  of  having  a  partition  of 
the  community  lots,   end  for  the  adjustment  of  certain  equities  claimed 
to  have  grown  out  of   improvements  placed  upon  the  property  with  the  com- 
munity funds  and  estate  of  the   second  marriage.     The  main  contention  of 
appellants  is    that  the  court  erred  in  its  decree   in  refereice  to  a  cer- 
taiin  lot  4,  upon  -sfliiGh  Clift  erected  a  brick  stare-house  after  his   sec- 
ord  marriage.      I  Is  lot  arc!-  store-house  front  on  a  square  looking  vrest. 
The  lot  is  40  feet  wide,   ard.  the   scxith  half,    it  is  conceded,   \.a,s  the 
separate  estate   of  t/B  first  \/ife.     The  north  half  had  been  sold  by  Clift 
and  the  first  v/ife  dvL-iag  their  narriege,   and  a  strip  thereof  10  feet 
v/idO;   adjoining  tls  south  half,   aal  e::teiidir:g  its  entire  length,  was 
bouglit  bac'.:  during  -tsi"  life-time.     It   is  also  conceded  that  this    strip 
was  coranunity  property  of  the  first  marriage.      The  brie  ir  store-house   is 
23  feet  rado,   and  is  situated  upon  the  strip  of   10  feet,  and  extends 
over  13  feet  upon  tlie  soutji  half.      The  court  below  found  that  the  house 
v/ac  paid  for  ty  a  lot   of  the  value   of  0600,   vhich  was  commvinity  property 
of  the   first  marriage;   and  by  goods  and  money,  v.hich  belonged  in  common 
to  Clift  and  his  second  v/ife,   and   that  tlie  house  was  v/orth  $3,000.     Tne 
ground  upon  which  the  house  stood  on  the  south  half   of  lot  4  v/as  adjudged 
to  be  the  property  of  appellants,   and  th^t  on  the  north  v/ac  decreed  to 
belong,   one  undivided  half  to  appellants,    and   the  other  undivided  half 
to  all  the  parties,   as  follows:     A  thiid  interest  for   life  to  appellee 
Leonora  Clift,   and  gtibject  to  this  life-estate,   that  half   to  belong  to 
all  the  children  of  S  .  A.  Clift,  each  holding  an  equal  interest.      In 
other  words,   the  court,    in  effect,    adjudged  that,   as  between  the  parties 
to  thic  Ciiit,   one  undivided  half  of   the   strip  of  land,   10  feet  wide,   on 


403. 

tlio  north  half  of  lot  4,  \/as  to  be  treated  as  tlie   separate  property  of   the 
first  Ilrr;.  Clift  at    the   time  of  her  death,   and  the  othei'  lialf  ac   the   sep- 
arate property  of  lier  husband  at  the   tiine  of  his  death.     So  fa£  the  con- 
clusions were  cox-rect.     But  it  also  adjudged  that  appellee  Leonora  Clift 
had  an  interest  of  Cl,200  in  the  store  house;   that  her  children  han  an  in- 
terest of  0857.15,    aid  appellants  an  interest   of  09'^-2.85,    in  the  sane. 
Tliis   result  was  reached  "by  allowins  llrs.  Clift  one-lialf  the  value   oSf  ttho 
cofflQunity  accetc   of  herself  and  her  deceased  husband  vhich  went  into  the 
building;  by  av/arding  to  appellants  the  value  of   one-half  of  the  assets  of 
tlie  community  estate  of  their  father  cxd  nvather,  -ahich  v/as  also  used  in 
its  construction;  and  allov/in^i  all  the   children  of  both  marriages  the 
value  of   the  other  Irnlf  of  rll  such  asEots;   that   is  to  say,   the  val-ue  of 
onorhalf  of  all  tlae  propertj''  and  money  used  in  erectiEj   the  house.     The 
decree  appointed  corainis sioners  to  divide   tlae  property  in  accordance  \/ith 
the  respective  interesis  of  the  parties  as  settled  lay  the  court,   axxL  di- 
rected them  to  report  at  ne;;t  term. 

"/e  thin'.:  there  vas  errox  in  the  decree  of  tiie   court.     2ie  court  prop- 
erly adjudged  that  the  south  half  of  lot  4  -./as  the  property  of  appellants. 
There  is  no  controversy  about  this.     It  v.qe  their  mother's  separate  prop- 
erty,  and  upon  the   termination  of   their  father's  life-estate  in  an  undi- 
vided third,  they  'jecame  the  absolute  owners.     It  is   too  plain  for  arrjTi- 
ment   that  a  tens:nt  for  life  of  an  undivided  interest   in  cominon  v.ith  other 
tenants  \*.o  are  entitled  to  the  remainder  can  have  no  higher  right   its. 
this  respect  thr.n  if  he  was  such  tenant  of  the  entire  estate;   ani   it  mi:ist 
be  lield,  both  i^Jon  principle  ar^d  authoritji-,   that  his  legal  representatives 
cannot  demand  of  the  relLlo^inder  man  compensc-tion  for  improvements  v,hich  he 
has  put  upon  the   estate.     During  life  ha  is  entitled   to  the  use  ard  enjoy- 
ment of   tlB   property;  but  upon  his  death  the  remainder-man's  right  to   its 
enjoyment,  free  from  any  imcum"brancec,   immediately  attaches.     This  right 
the  latter  v/ould  not  have  if  the  tenant  for  life  v/ere  permitted  to  place 
improvements  upon  tiae  propert3r  at  vill,  for  -.hie h  he  could  he  required  to 
pay  upon  entering  into  the   estate.     It  is    tiien  his  privilege  to  appropriate 
the  property  to  such  use  as  his   business  convenience  or  pleasure  may  dic- 
tate.    His    iute;'Oct  in  rsmr^inder  ./ould  "bo  seriously  impaired,   if  the  ten- 
aJit  fa'    life  >vere  permitted  to  improve  in  his  '-'ay  end  for  his  ccvn  purposes, 
and  to  ma::o  such  iut^rovements  a  charge  upon  the  irroperty.     That   this  can- 
not be  done  is   laid  dovn  b:;,'  an  eminent   text   writer,    (1  '.".'ashb.  Heal  Prop. 
110]   aad  is  maintained  in-^  n  able  and  elaborate  opinion  by  the  supreme 
court  of  J.outh  Carolina  in.  the  c^se  of  Corbett  v.  iaurens,  5  Rich.  2q.  SOI. 
That  c:...<:e,    lilce  this,  v/as  one   in  -./hich  the  father,   a  tenant  for  life,  made 
introveosnts  upon  a  lot   to  r-'hich  his   children  were  entitled  in  remainder. 
Kno-.aug  that  rfter  his   death  the  estate   is  to  become  the  absolute  property 
of  those  for  '  •liom  it   ir  his  duty  to  provide,   the  presumption  is   strong  that 
tlio  father,   in  such  a  case,   intenc'.s    tl~.e  improveiiEnts  as  a  gratuity  to  his 
children. 

In  proceeding  to  tho  consideration  of  the  improvei:iientc  upon  that 
portion  of   the  lot  lying  north  of  the  dividing  line,   '.-re  note  that  appel- 
lants contend  tlaat    tho  evidence  did  not  v/arrant  the   finding  of  the  court 
tliat  the  building  v;as  paid  for  in  part  ••„lth  the  community  property  and 
funds  of  tlie  second  mai'ital  union.     But     e  thin::  tliis  claim  is  not  baseS 
upon  sufficient  g-oands.     The  facts  are  meage;  .     But  it  v/as  sho^rn  ths.t 
when  Stephen  ...  Clift  -v/as  firct  married,   in  1659,  he  -..as  doing  business 
at   a  neroiiant,  having  a  stoc'.:  of  goods  valued  bj'  the  ''itness  at  from 


.  404, 

$4,000  to  v)6,000,     Vlhea  hie  first  \vife  died,   in  1671,   it  ceemc    that  he  had 
on  hand,   in  goods  axd  money,   ahout  $4,000.     T^tare   is   no  x^roof  that  at   that 
time  he  owed  any  defets,   and  it  must  he  presumed  that  he  owed  none.     He  con- 
tinued business  until  a  short  time  before  his   death,    in  1862,  v/ton  he  be- 
came insolvent  from  losses  on  cotton.     From  1874  to  1876  the  business  was 
done   in  the  name  of  Clift  u  Fraley,  from  which  it  v;oulc.   apljear  that  h© 
then  had  a  partner,   tliough  the  testimony  does  not  mate  this  clear.     The 
house  war  built  in  1879.     Ihe  contractor  testified  that  he  was  paid  in  a 
half  a  lot  valued  at  ^600,  vrhich  is  conceded  to  have  been  community  of  the 
first  marriage,  and  in  ^oo^is   from  the  store,   and  in  money.     The  amount  of 
goods  aixL  money  v.-as  §2,400,  but  hov;  much  of  each  was  not   shown.     If  it  had 
been  shov/n  that  th^   identical  goods  Clift  had  on  hand  at  the  time  of  his 
first  vdfe*s  death  went  to  tho  construction,  a  trust   in  the  property  to 
amount   of  the  value  of  her  comjaunijy  interest  therein  would  Biave  been  shovm. 
But  it  is  unreasonable  to  suppose  that  this  was  a  fact,     lifter  the  lapse  of 
ei^ht  years  fraj  the  death  of  the  first  vdfe,  t.b  think  the  presumption 
must  be  indulges,   in  the  abseixe  of  come  other  evidence,    tkiat   the  goods 
v/ere  acquired  during  the  secord  marriage,  and    .'ere  community  property  of 
Clift  and  the  secor:^.  wife.     This  v/ould  be  the  case  as  to  the  money  which 
wad  paid  to  the  contractor,  even  if  it  had  been  shown,  as  appellEJuts  claim, 
that  the  money  cane  from  the    store.     But  we  do  not   so  construe  the  testi- 
mony,    ".'e  do  not  imderstaad  the  contractor  as  saying  tliat  the  money  came 
from  the  business  of  the  store.     His  language,    as  cho\aa  by  the  statement 
of  facts,   is:      "The  remainder,  02,400,  was  paid  partly  in  money  and  partly 
in  goods  from  Clift* s  store.'*     "here  tlie  money  came  from  there  is  nothing 
to  sho-;,'  and  hence   hie  precui^iption  is   that  it  -.-•as  coi-.raunity  estate  of  thd 
then  existing  marital  union,     ".'e  conclude  tloat   tlie  fiiidiog  of  the  court 
was  correct  upon  this  imtter. 

But  is  the  second  community  entitled,  upon  partition,  to  be  reim- 
bursed for  the  money  so   invested?     As  to  the  strip  of  land  now  under  con- 
sideration, Stephen  .1.  Clift,   father  of  appellant,   occupies  a  different 
position  from  tliat  held  by  him  as  to  the  memainder  of  tlie   lard  upon  v/luch 
the  builcdHs  stands.     He  was  a  tenant   in  comi-non -./ith  his  vafe*E  children 
of  this   trip,  holding  an  unc'-ividee  half  interest  by  fee-simple  title. 
This  property  belonged  in  common  to  himself  and  his  first  v/ife,  and  he 
was  the  suiTiving  husbanc..     It  me^'-  bo  conceded  that,  as  a  mere  tenant  in 
common,  he  could  claim  nothing  for  his  improvement,   unless  it  could  be 
set  apart  to  liin  by  leaving  one-half  in  tiie  value  of   tliis  laid  tmimproved 
to  hie   first  v/ife's  children.     But  we  may  say,  as  to  this  small  piece  of 
ground,    that   it  did  not  adait  of  any  partition.     The  parties,   even  in  the 
life-time  of   the  father,  c  ould   only  have  severed  their   interests,  ty  a  ■  - 
sole:-  A.  «ial<S, .'thoroToT**^  beitij  aocoachry-to-.a  severarce  of  their  Intofc-'t:. 
no  ro.-.-.  on  i;:  ccnn  why  tho  partives  vAio  v,ould  1:^:^6  taan.  entitled  to  the 
piHDporty  -rd  fund:-    hich  paid  for  tho  hoiicc  :hould  not  hr.vo  rot  report  to 
thorn  from  tho  proceed,    of  the  salo  the  rmount  by  v/hich  tliu  v -.luo  of  tho 
laucL  h".r.  been  onh-.nced  by  such  improvement.     Since  tho   oc;Uiti-or-t!f  the 
appcllcoL  mry  bo  r-'ucurud  -.athout  depriving  rppoll-nti-'Of' rnj'  rights  \.hich 
they  would  h;-.ve  hrd  if   tho   improvomont  hcd  not  been  mrdo,  wo  TuO  no  re-.: on 
why  it  should  not  bo  done.     Be.ido,  wo  are   of   opinion  th-'.t,   in  the   r.ductt- 
mcnt  of  cquitioc  grov/irg   out  of  the  coafiictiug  claim-  which  .-.ri:c  xindcr 
our  commuaitj;  l-.v;c-,  v;e  '-houlf.  not  bo  ro^rtrictod  by  the  rigid  rulct  v/hich 
-•V^Iy  ordin-.rily  botv/een  ten.uit;,  in  common.     See  Rico  v.  Rice,   21  Te::.   65: 
Purrh  V.  ^/in::ton,   66  Tox.  521,  1  £.  V.'.  Rep.  527. 


405. 

\7e  corcidor  it  uimccoc:'^.ry  to  die  cue::  the  qucction  of  rcatr.  of  the 
old  frrjnc  irtoru-houro  on  lot  5,   or  tho  xncurance  money  collected  by  tho 
f".thor  of  p.ppellrjitc  when  thr.t  houcc  w-c  burnt,     nor  heed  v;o  consider  tlio 
quottion  of  improvomcnt     nd  rent:,  upon  tho  f.-.rm  in   ftic  ccuntry,   the  prop- 
erty of   tho  firct  Lir::.  Clift.     It  ic  not   Lha./n  that  iny  money  from  :.ny  of 
thocc   courcoi:  went  into  tho  improvGmjnt  on  lot  4,  vihich  ic  tho   ::ubjcct  of 
contention  here.     If  Clift  recoivod  moucy  frora  there  courcoc  TJhich  jurtly 
belonged  to  r.ppellcjitc,   -rd  for  which  he  did  not  account,    thct  \/ould  m.:.l:e 
him  their  debtor  to  tho  rjnount   ro  received,  but  v.'ould  not  m'-te  3iim  c 
truLtce  for  their  benefit  of  property  r.cpuired  by  him,    into  which   thic 
money  ic.  not  clc?.rly  trr.cod.     Follov/in^  the   ctr.tutory  rula,  v;o  think  only 
to  much   chould  be  r.l lowed   for  the    improvement:'  c:  tho  T?--.lue  of    tho  proper- 
ty hr-r.  boon  incror.;:od  thereby.     V.'o  cro  of   opinion  th-.t   the  court  belov/ 
chould  hr.vG  :t^7:.rded  tho   rppollrntc  the  recovcry-of  the  :.outli  half  of  bloct 
4,  free  of  -.11  clr.ira::-   raid  incumbrrjicot ;    th-.t   it   chould  h-vo  -.L.cc::c;cd  the 
V  luc  of   tlx.  ground  on  tho  north  hall   of   th;.t  lot,   r-.nd  ordered  the  r-ane, 
together  with  co  much  of  the  building  -c   t;tr.ndc  thereon,   to  be  cold;   that 
frora  the  proceed::  of  the   :-.lo  the  v.luo  of.  the  ground  no  c.zzoczou  chould 
be  firct   trlcen,    cJid  divided  n.z  follov/c:      There   chould  be  pr.id  to  Lire. 
Clift  r.  eum  oqual  to  onc-rixth  interest  for   life   in  the  proceeds   of  the 
l-jidlproper,  the  rom-.indor  of  onc-h-.lf  cuch  "proceeds,   after  deducting  I'xi . 
Clift* c    interact,   to  be  divided  equally  cnong  the  otlier  pr.rticc,   j.nd  tho 
other  hc.lf    to  go  to   -p.cllr.nte.     V.hc.t   rcm?.inc  of  the  procecdc    of  tho  cr-Jc, 
,-fter  deducting'  the  vr.luc  of  tho   Ir.nd,    chould  be  divided  r.c  f ollowc : 
5>ivelve-thirticthc   to  lire.  Clift,   one-h-.lf  to   rH  the   other  p-.rticc ,    to  bo 
equr.lly  divided  betv/eon  them,   -nd  tlx.  romr,iniu.2>'  one-tenth  to  aPPol?--:it;  , 
to  be   cqu  .lly  divided  :j-iiong  them. 

Tho  judgm^t  v.lll  be  reformed  in  accordando  \/ith  tho  vicve  e::preccod 
in  thic  opinion,  end  r.ffirmod.     But  tho  cr.uce  will  be  reiii:.nded  to  the 
lower'    court,  -.'ith  inctruetionc  to  access  tho  vrJue   of  the  l-.nd  on  the 
no:-th  h:.l£  of  lot  '1-  vithout  rog  .re.  to  the   improveracntr  ,     nd  to  d..ti.-nino 
•.vh  .t  proportion  the  valuo  of  tha  lifo-ectato  in  lire.  Clift  "bearc  to  thE 
Vi^lue  of  the  -.beolute  title,  _-nd  to  decree  r.  er.lc  of   er.id  ctrip,   -nd  the 
improvemcntc   thcr-on,    :nd  ..  dietribution  of"  the  proceede   in  r.ccordanco 
'..'ith  thde  juc'gment. 


406. 


EPKECIfflLS  ot  m?.  V.  SPRECKELS.    (S  .P.  430) 

(116  Cal.  539) 
(Supremo  Court  of  California 
March  25,   1897) 
48  Pac  228. 

In  Taanc,    Appeal  from  superior  court,  city  and  county  of  San  Fran- 
cisco;    Charles  '.V.  Slack,  Judge. 

^Actiou  "by  Glaus  Spreckels  and  /jma  G.  Spreolsels,  his  wife,   against 
_Rudo]a:ih  Spree ioels.  From  a  judgment  entered  on  a  aeraurrer  to  the  complaint, 
ajjdjgrom  an  order  dissolving  an  injunction,"  plaintiffs  appeal.     Aff irmed . 

Temple,  J.     This  is  an  appeal  from  a  judgment  entered  ui^oa  demurrer 
to  the  complaint,   cud  from  an  order  dissolving-  en  injunction.  The  plain- 
tiffs are  husband  and  vafe,  and  sue  to  recover  certain  corporpt.n  p.tnr.ir. 
It  is  averred  in  the  >"-Am_-i  pi -.it.   t-.viat.   fh^  p2g.intiffs  intermarried  July  11^. 
1852,  and  that  on  the  51st  day  of  July,  1695,   they  o-.med   the  corporate 
stock,   ac  community  property,  which  on  that  day  the  plaintiff  Glaus  Spreck- 
elsyoluntg.rily,  and  v.l^hout  any  consideration^  anc.  "'v?rttiDt[t"the"^gonsBgt^of 
HTT/ife,   the  other  plaintiff,   trgpsf erred  a.5_n._gij£±-,±c  the  defgndant . 
Th9~saic"'.  Anna  C.  Spreckels  has  never  consented,    in  vTitin-G;  or  other'.ase, 
to  said  transfer  or  sift.     The  complaint  contains  many  other  .allegations 
which,  however,    are  not  material  to   this  discussion.      Tlie  complalnt_v^^s 
demurred  to  on  various  grounds ,  and  amon^  them  that  the  complaint  does~ 
not  state  sufficient  facts  to  coirstitute  a  cause  of   action,  ajxl  there  is 
a  misjoinder  of  pcrties  plaintiff,   in  that  the    dfe  is   joined  wigh  her  hus- 
band as  plaiutiff  in  an  action  to  recover  coianunit:^  property. 

The  first  point  made  "by  the  demurrer  rests  upon  the  assurAPt^on  that 
the  coniplaint  shows  that   the   stock  ''jQcame  the  corarnxmity  projpei-ty  of   Sie 
plaintiffs  prior  to  the  passage  of  the  amenojnent   to   section  172  of  tlie 
Civil  CcpLs,  vhich  was  made  March  SI,   1891.     Tlio  complaint  does  not  stats 
\/hen  the  stock  v/as  acquired,  and,   as  this   is  a  material   question,   it  is 
coutea-.ed  th.-'.t  plainlJiffs  must  be  deemed  to  liave  stated  their  case  as 
favorably  to  themselvec  as  the  facts  -.."ould  v.'arrant,  sxxC  therefore  it  must 
bo  lie  Id  that   the  stock  ^t.s  acquired  prior  to   that  da,te.     As  appellants' 
coiincel  seaa  to  acruiesce  in  this  claim.     I  shall  so  consider  it.     Prior 
to  tho  amenCinent,    tiie  section  read  as  f oIIov.ts:     "The  husband  has  the  nan- 
age;.ient  aixl  control  of  coirtnunity  i:>roperty,  \-ith  the   like  po'/er  of  disposi- 
tion  (other  than  testcuentary)   as  he  has  of  his  separate  eatate."     The 
amendment  consisted  in  adding-  the   following:      "Provided,  however,    tliat  he 
cannot  make  a  gift  of  such  coranunity  property,  o::  convey  tne  same  -.vitliout 
'^  valuable  o^ns idera^Ibn,  unless  the  wife,   injv/ritin^',  COniiyuL   LhtJi-e^e-r" 
liR£,,n-r,uM-if.~c^TitBTi^ti    .MTPt   tiiE  ?j-.-^eue,mcnt   cpnnot  be  held   to   aP,^l^'^_to__coa^ 
rai2nit:y  property  accv.ired  pri,or  to  the   nmp'n''"iinftat,   Vi'^v  tQ—SajTiages  ent'Srec'. 
into  prior  to   that   time.     So  construed,  he   contends,   it  would  deprive  toe 
]iu5baScr'of  a^veSXyd  j?)»cprietary  rivht  in  the  coiziviunity  property,  to  -..It, 
the  pov.'er  to  dispose  tliereof    .Ithout   the  (ionsent  of   his  wife,  and  v/itheut 
a  valuable  consideration;  and  thr.t  it  also  impairs  the  obligation  of  a 
contract.     St  is  said  that  the  la  ■  -was  at  the   time  of  the  marriage  that 


407. 

the  hustaud  load  the  management  an.d  control  of  the  community  property,  -with 
the  lik3  al3S03:nte  power  of  disposition,   other  thin  tescGjr/intary,  as  of  his 
separr.te  estate,  arad  tint   this  liocara?  a  part  of  th3  co^vLract  'oy  vhich  the 
marriage  v/ac  constituted;  and  to  deprive  the  hrjc'baxid  of  this  pov/er  i*   to 
iinpair  the  olilisatiou  of  tl-j-^.t  contract «     To  determine  whether  the  anenu- 
ment,    if  applic;a"blG  to  c oranrji: ty  property  stiquired  prAor  to  its  j/asrra^-e, 
would  deprive  the  hxistand  of  a  vested  ric^it   oi  property,   it  ic  np.cessary 
to  consider  what  were  the  rights  of  husband  ard  v;ifo  in  the   co>:nriunity  prop- 
erty at  ths  date  of  its  par;,va!;e.     Tao  coirj-citution  does  not  mention  co^nvjz?. 
ty  property,  tnt  dooE  dcii.V:\e  v/hat  cliall  coiDstltute  the  separate  property  of 
the  spouses.     Const,  art.  20  Sec.  G.     The  Oivil  Code   (section  161)  provides 
that  the  husbani  and  v'if  e  may  ho  Id  .'.property  as  joint  touantc,  tenants   in 
comn:ion,   or   as  cori^iiunity  i^ropertjr.     Th-sn.,  loavins  defined  separate  property, 
it  provides  that   ell  other  property  acquired  after  marriage  l^y  either  hus- 
"band  or  v;ife  or  both  is   community  property'-  Section  167  enacts  that   the 
community  property  is  not  lia'^jie   for  fris   ieb-s   of  the  wife  contracted  after 
marriage;   section  166,  that   the  earnings  of  the  wife  are  not   liable    for 
the  de'^ts  of  fbe  hus'jand;   anl  section  169,  that  the  earnings  an.d  aocuj'Aula-- 
tions  of  the  '..ife  and  of  htjr  minor  children,   who  are  in  lior    custody,  v/liile 
she   is   living  apart  from  her  husband,  are  hsr  separate  property;     Section 
172  is    the  SGction  nov/  under  considerc.tionr     Section  662  of  this  Code  is: 
"The  ownership  of  property  by  several  perccnc   is   eivhsr:    (1)   Of  joint  in- 
terests;   (2)    of  partnership  interests;    (3)   o.:    interests   in  common;    {-".)    of 
commimity  interest  of  husband  and  vr.fe."     5e-ction  667  ac,ain  defines  com- 
munity property.      This   court  hr.s  held,   after  mature  consideration,    th.?t 
ijpon  the  death  of  the  husband  the  \;ife  taiies  one-half  cf  the  coiaiTiuni t;^?-  pro* 
pejjty  as  heir.     It  has  been  l:ield  that   the  hv.s''novc.  can.  -Tiairc  a  gift  of  the 
community  property-  to  the  v.'ifp.,ai"£L  f:o,;';-al;  it  into  her  Bepar?.te  estate.     To 
this  it  ma^  be  added  that  the  wife,   iE   pcsf.ossed  oC  businfiss  capacity,  can 
obtain  permission  to   carr;/  on  business  in  her  ov;n  name  as  a  sole  trader, 
and  that   the  profits  of  such  business  are  her  sepax-ate  property.     Prior  to 
the  amendjT.entE  of  1891  tl^o  Code  vested  in  the  husbarxl,  with  refeience  to 
the  coKinunity  p^cporty,   all  the  elements  of  ovmership,   and  in  the  -/ife  none. 
If  the  ri?^its  of  the  parties  in  the   co-^v^r.-'nity  property  are  the  same,   then 
the  law-  is  partial  to   the  Vvife.     Shs  can  easily  luanass  that  all  her  earn- 
ings end  accumulations  shall  be  her  separate  property.     Tlie  husbr^nd  caa  in 
no  way  abtain  a  similar  advantage.     If  the  wife  is   living  separate  and 
apart  from  the  husband,   thrortgh  her  ov;n  fault,  her  earninj^-s  and  accumulat- 
ions are  her  own.     Yet,   if  the  husbaud,  durixig   the  same   tine  accumulates  a 
fortune,   it  is   coir^nunity  pi-operty.     There  is  no  mode  in  v/hich  coirmiuiity 
property  can  be  ccn/erted  into  his   separate  property.     As  to  all  the  world, 
e::cept  the  ^"ife,   there  ^ss,  prior   to   this  cmendment,  no  distinction  between 
the  community  estr.te  and  the  separate  estate  of  the  hu/sband.     If  suit  \'ere 
brouglat  upon  a  liability  incurred  in  a  business,   the  profits  of  v,hich  v^ould 
be  comnvonity  property,  and  judcment   recovered,   e::.ecution  could  be  levieo. 
upon  the  separate  estate  of  tjie  husband,   cUC.  che  debt  entirely  satisfied 
therefrom,     ilis  separate  estate,  during  tlie   entire  inarriage,  is  ]iabi'5  to 
be  taken  for  community-  debt;^,  and  of  course  fuiniishes  a  credit  in  aid  of 
commimity  business.     Xf  the  comiaunity  looses,   the   loss  ray ^all  upon  his 
separate  estate,   but  his   separate  estate  cannot  profit  by  the  snccess  of 
the  comjunity.     The  separate  property  of  the  wife  is   e.::eapt  from  all  these 
liabilities,   but,   on  the  other  hand,   the  community  property  is   liable  for 
debts  incurred  by  the  husba:id  in  the  management  cf  his   separate  estate, 
17ov;,   all  th.ese  differences  point  to  the  fact  tliat  the  husbarx.   is   the  ab- 
d 


408. 

solute  pwnor  of  the  ooumunity  pro^rtjr.     Th&XQiorQ  xt  it>  w^-*^  "^^   liabil- 
ities incurred  in   tlie  mauc.acTT«nt   of   the  separate  pctato  caa  be  enforced 
against  the  common  property,  v/hile  tiit/oo  r,r   f->,o  *.-irw  cannot  "be.     And  there- 
fore she,   imder  certain  circumstarces ,  can  accunalate  property  \*Lich  shall 
not  belong  to  the  community.     If  it  trent  to  the  community,    it  would  belong 
to  the  husband,   and  under  the  circuustanoes  it  is  not  thought   just  that  he 
should  have  it.     Ho  needs  no  corresponding  privilege,   because  the  commun- 
ity property   is  his  as  absolutely  as  is  liis   separate  estate.     So  he  can- 
not convert   it  into  his   separate  estate,  and.    if   the  property  belonged  to 
the  commxinity,   ani  tl'^  husband  had  only  an  agency,  perli^s  he  could  not 
giTre   it  to  his  vafe. 

How,   then,   v/e  have  this  state  of  tte  case;      The  statute  provides  that 
the  husband  and  wife  may  hold  property  as  caiT:!m\Kiity  property.     Section 
161.      It  defines  v/hat  sl-all  constitute  comraunity  property.      It  defines 
ox-jaership   (section  054),   and  then  2'i'ves  to  the  husband  complete  legal 
ovmership  of  the  community  property   (section  172),  and  confers  upon  the 
v/ife  no  element   of  ovnership  vJoatever.     Courts  and  counsel  have  occasion- 
ally endeavored  to  find  come  property  right   in  tlie  wife,,    or  son©  respect 
in  which  the  husband's  interest  falls  short  of  full  property.      I  think 
it  will  bo  universally  admitted  that  so  far  there  has  been  a  complete 
failure   in  this  respect.      Iho  first  attempt  shown  by  our  reports  of  that 
Icicd   is   in  Goicy  v.   CrOdey,   39  Cal.   157.     In  that  case  it  is  said  that, 
Tihile  no   other  teclmical  term  so  well  defines  the  wife's  interest  as   the 
phrase  "a  mere  e:rpectancy,   *     "■'     *  it  is  at  the  same  time  *     *     *  so  vert- 
ed in  her  that   (the)  husband  cannot  deprive  lier  of  it  by  his  mil,  nor 
volimtarily  alienate   it  for  the  mere  purpose  of  c-lvesting  iier  of  her  claim 
to   it."     'Hie   testamentary  po\/or  is  not  an  essential  incident  to  property, 
and  depriving  the  husband  of  sixh  pcr.'er  wiHi  refereice  to  the  community 
estate  did  not  tal:c  from  him  any  ri^jht  of  property.      It  v«is  competent  for 
the   legislature  to  deny  to  the  husband  the  righ.t  to  dispose  of  his  separ- 
ate estate  by  will,  and  to  provide  that  upon  his  death  all  should  go  to 
his  v/idow,   subject  to  the  payiaent  of  his  debts.     Should  the  legislature 
now  so  provide,   it  vrould  not  deprive   tlie  husband  of  any  vested  right   to 
property,    or  give  the  wife  son  interest  in  his  estate  during  his  life.     If 
the  property  did  not  belong  to  the  husband,    tliore  vjould  be  no  occasion 
for  a  law  limiting  his  tostaiTiontary  power  v.ith  reference  thereto.     The 
original  statute,   -.hich  practically  ac'.opted  the  Iie::ican  system  as   to  gan- 
ancialos,   \7as  held  to  constitute  such  a  limitation.     Board  v.   Qio;c,   5 
Cal.  256.       tnhat  gave  the  wife  a  nominal  estate  during  the  marriage,  v.hioh 
becstne  an  actual   estate  upon  its  termination.     If  the  husband  cannot  make 
a  valid  transfer  of  tl:e  property  for  the  purpose  of  depriving  the  wife  of 
it,   that  does  not  show  a  vested  right  in  her-     Ihis  is  e:<plained  in  the 
very  case  quoted  as  authority,    in  Godey  v.   Gcdey.     Da  Smith  v.  Smith,   12 
Cal.  217,  Justice  Field  said:      "Voluntary  conveyances,   given  on  the  eve 
of  marriage  for  the  purpose   of  depriving-  the   intended  \7ife  of  hsr  right 
of  ^orrcr,  vAiere  that  conmon-law  right  eicists,   are  fradulent  as  against  her 
claim.     H^is  v/as  so  adjudged  in  Sv.'aino  v.  Perine ,   5  Johns,   di.  482.     And 
upon  the  same  pi-inciple,   a  voluntary  disposition  by  tlie  husband  of  the 
comaon  property,   or  a  portion  thereof,   for  the  lilce  purpose  of  depriving 
tlie  wife  of  her   interest  in  the  same,  must  "be  held   ineffectual  against 
the  assertion  of  her  claijn."     Uor  can  he  put  Ms  separate  property  out  of 
his  hands  for  tlio  purpose   of  defeating  his  wife  in  an  anticipated  appli- 
cation for  alimony,     llurray  v.  l?urray  (Cal.)  47  Pac.  37.     So  we  ^ee  a 


4-09. 

mere  e:cpec toEcy ,  without  any  vested  property  right  at  the  tine  the  fraud 
v^-as  committed,  is  sufficient  to  enalDle  the  person  who  has  the  e:cpoctancy 
to  maintain  the  action  after  his  right  has  hecouB  vested.  The  hue band's 
o\mership  of  one-half  of  tbs  corcmunity  estate  is,  in  a  sense,  condition- 
al. It  may  terminate  upon  the  happening  of  a  possible  event.  Uiatil  then 
ho  is,  however,  absolute  ovmer  as  defined  in  the  Code.  Civ.  Cede,  Sec. 
678-680. 

The  marital  community  was  not   organized  for  the  purpose  of  accumu- 
lating property,  and  the  husband  owes  no  duty  to  the  community,    or  to  the 
wife  either,   to   labor  or  accumulate  money,   or  to  cave  or  practice  economy 
to  that  end.     He  owes  his  wife  sax!,  children  suitable  maintenance,   and  if 
he  has  sufficient   income  from  his  separate  estate  for  that  purpose  he 
need  not  engage   in  busicess,    or  s  o  live  that  there  caa  be  commtmity  prop- 
erty.     If  he  earns  more  than  is  sufficient  for  such  maintenance,  he  vio- 
lates no  legal   obligation  if  he  spends  the  surplus  in  e::ctravagance,   or 
gives   it  away.      Ihe  community  property  may  be  lost  in  visionary  schemes 
or   in  mere  whims.     V/ithin  tie  law  he  may  live  his   life,  although  the  com- 
munity estate  is  dissipated.     Of  coxn:se,    I  an  not  now  spealring  of  his 
moral  obligations,     "'e  derived  the  system  of  community  estate  from  the 
Mexicaa  law,  which  prevailed  here  before  the   acquisition  of  the  territory. 
The  system  vvaa  unlmovm  to  the   common  law,   ani   it  has  no  better  name  for 

.  the.  interest  of  the  r;ife  during  the  marriag-e  than  "a  mere  e^rpectancy." 
The  He;:ican  jurists  spolce  of   it  as  a  feigned  and  fictitious  ovjiership,   or 

.,as  merely  nominal,  and  it  is  contrasted  r/ith  the   ovaership  of  the  husband. 
!I!hat  is  called  the  actual  or  true  ormership.     In  Panaud  v.   Jones,  1  Cal. 
488,    it   is  said:      "The  v/xfe,   says  Febi-ero    (1  Feb.  Hej.   225,  Sec.    19),    is 
clothed  vdth  the  revocable  ard  feigned  dominion  and  possession  of  one- 
half  of  the  property  acquired  by  her  and  hsr  husband  d;jriag  the  marriage; 
But  after  his  death  it  is   transferred  to  her  effectively  and   irrevocably. 
*     *     *     !Ihe  husband  needs  not  tlE  dissolution  of  the  marriage  to  consti- 
tute him  tbe  real  gnd  veritable   owner  of  all  the  ganancicQ.es,  since  even 
c!:uring  the  marriage  he  has,    in  effect,   the   irrevocable  dominion,''  etc.     In 
Van  Ilaren  v.   Johnson,   15  Cal.   308,   it  is  said  that  tte  estate  of  the  com- 
mon property  is    in  the  husband.,   and  he  may  dispose  of  it  as  he  can  of  his 
separate  estate;   the   interest  of  the  vafe  being  a  mere  ei:pectancy.     Guice 
V.  Lav/rence,   2  La.  Ann.  226.,    is  cited  as  authority.     In  Pacl<a.rd  v.  Arel- 
lanos,  17  Cal.   525,   that  case  is  again  cited  as  authority,   in  vjioich  it 
is  said  that  di^-ing  the   life  of   the  husband  4he  wife  cannot  say  she  has 
gananciales, — that  is,  comriiunity  property, — but  tiie  husband,  diring  mar- 
riage,   is   "real  y  verdadero  dueno  de   todos,  y  tiene  en  el  effecto  su  dom- 
inio  irrevocable";  vh.ere,   too,  the  interest  of  the  vafe  \'as  said  to  be 
revocable  end  fictitious.     In  Sscriche,  under  "Bienes  Gananciales,'  it  is 
said  tlet  the  husbaii.  ovais  the  community  property  both  nominally  and  in 
fact,— en  habito  y  en  acto;  './hile  the  \.ife's  ownership  is  only  nominal, — 
en  habito, — becoming  an  actual  ostate  upon  the  dissolution  of  the  marriage. 
In  Ballinger  on  Conrjimity  Property  the  Ilezican  lav  is  stated  as  above, — 
the  wife  had  only  a  feigned  or  fictitious  estate,  vAiich  ripened  into   a 
legal  estate  upon  the    termination  of  the  marriage;  and  1^   adds,   referring 
to  tlie  state  of  things  under  the  former  statute  of   this  state,  Mhich  pro- 
vided tliat  upon  tiB  death  of  th?  vafe  prior   to  the  death  of   the  husband 
oiB-half  of   frs  community  property  should  go  to  her  heirs,   that,    since 
the  statute  failed  to  provide  that  upon  tiB  death  of  tie  vdfe   one-half 
Eliould  go  to  her  estate,  her  intangible   interest  did  not  ripen  into  a 


410. 

legal  estate.     Section  35.     Accordingly  it  was  held   in  Pacteird  v.  Arsl- 
lanes  tiat  under  zvcla  cii'cumctancec  tho   intoroct  of  tire  wife  could  not  te 
administered  upon,  and   that  her  heirs  did  not  acquire  the  estate  by  in- 
heritarce  from  1-^r  upon  her  death  "before  her  to^band,  but   toolc  as  persons 
designated  by  the   statute.     Speaking  of  tie  vafo's   interest,    it  is  there 
said:      "Such  interest  constitutes  neither  a  legal  nor  an  equitable  es- 
tate,  and  there   is,   therefore,   nothing'  in  it  for  a  court  of  probate  to 
act  upon.     If,  under  the  statute,   the  title   of   the  husband,   upon  the  death 
of  the  wife,    is  divested  as   to  any  portion  of   the  property,   such  title 
passes  directly  to  the  descendants  of  the  v/ife,  and  they  tal©   it  subject 
to  the   liability  of  the  property  to  be  absorbed  in  tlie  payment   of  debts." 

As  the   lav/  stood  prior  to  the  amendment  of  1891,    I  doubt  if  a  happier 
phrase  could  have  been  devised  to  express  the   interest  of  the  v/ife  in.  the 
comnunity  than  that  used  by  Julge  Field  in  Van  I'aren  v.   Johnson,    "a  mere 
e2:pectaaacy ."     It  may  be  said   to  be  a  right — not  to  propertj?-,  but  as  against 
the  coinniunity — to  tale   one-half   of  tJ-B  residue  after  payment  of  debts  in 
case   the  marriage  be  dissolved  durinj  her  life.     A  sou.ev;hat  similar  state 
Of   tilings  exists  in  Preoace  under  the  Code,   and    it  has  been  there  said 
that  the  ivife  is  not  "proprie  socia,   sed  speratur  fore.     She  has  une  sictple 
esperance  to  share   in  sich  property  as  may  be  found  at  the  dissolution  of 
the  coaniuniitj'  undisposed  of  by  the  husband.'^     1  Bniige,   Col.  Lav/,   368. 
The  system  of  the  coriHuunity  in  California,  Louisiana,  and   Te::as  v.as   inher- 
ited from  Spain  or  lle-cico,   and  simply  continued  vath  such  changes  as  v.^ere 
deemed  desirable.     It  v;as  adopted  in  V/ashington,  Ilevada,    Idaho,  and  Ari- 
zona.    The  systei-as  are  not  e::actly  alike.     In  scne  states — Te::aE,  Louisi- 
ana,  aac-   Idaho — profits,    increase,  antL   income   of  separate  property  also 
became  conmunitjj  property.     It  is  not  so  liore.     If  the  \7ife  has  separate 
property,  the  iixroase  derived  from  it  is  also  separate  property:   only 
the  eai-"nines  ait.  tho  profits  gained  in  business,  and  the  increase  of  prop- 
erty so  acquired,   is  coaavmity  pSoperty;  and,   as  v-e  have  seen,  the  v/ife 
may  so  manage  as  to  convert  all  gains  derived  from  business  transacted  by 
her  into  her  separate  property.      In  Tv7ashiugton  the  husband  cannot  convey 
real  estate  belonging  to  liie   conimtuaity  v/ithout  joining  th?  vnLfe.     Tliere 
the  husband  and  v/ife  may  at  any  time  agree  as  to  the  status  of  the  comrnun- 
ity  propertjr,   such  agreement  to   tale   effect  at  the  death  of  either,   and 
either  nay  give,   grant,    ca-  sell  to  the   other  his  or  her  interest  i;   com- 
munity property.     Eaturally,    in  that  state  it  h^s  been  held  that  the  t/ife 
has  a  vested  interest  in  tl-£  cormunity  property.     Ballirtger,  Commun.  Prop. 
Sec.   78.     In  no  other  state,   so  far  as   I  am  a'^vare,  has  thore  been  any  such 
holding',   although  in  Te:ra.s  it  lias  been  said  tl:iat  she  has  an  equitablo    in- 
terest. 

It   is  suggested  that  the  sole   ov/rership  of  the  community/  property — 
if   it  be  conceded  to  tl3  husband — is  vested  in  hin  by  statute,   and  may  be 
taken  from  hin  by  statute.     All  oimersliip  has  been  sail  to  be  the   off- 
spring of  law,   but   it  does  not,  therefore,   follov;  Giat  all  property  ri^^ts 
can  be  divested  by  law.      In  fact,    I  soe  no  connecjrion  betv/een  the  premise 
and  tiB  conclusion.     T.hether  the   law  of  the  marriage  relation  ca:ii  be 
changed  so  as  to  affect  tlB   statue   of  property  accuired  thereafter  is  an- 
other question.     Tlae  communitjr  property,   as  a  rule,  constitutes  the  earn- 
ings, gains,  and.  savings  of  a  man  ducing  his  vhole   lifetime.      If  h^  can 
make  presents  to  his  friends,   provic3.e  for   indigent  relatives,   or  make  ad- 
vanceiTjents  to  his  children,   it  nust  be  from  tlus  property.     ?o  deprive 


I.^  *^  •  ->• 


••,-.      'r  • 


411. 

him  ofljfc'is  po\-/©r  ic  certainly  to  divost  him  of  a  property  right.     This  ar- 
gument need  not,  however,  be  pursued  further,  tiecanse  counsel  admit  that, 
if  tlie  husband  is   the   ov.:ner  of  the  property,   then  a  statute  v/hich  makes 
the  exercise  of  the  ri^t  to  dispose  of  it  suhjoct  to  the  will  of  another 
is  unconstitutional. 

Entertaining  these  views,   it   is  uzinecessary  to  consider  the   other 
contention  under  this  head,   that  the  amendment  violates  the  obligations 
of  a  contract.      It   is  clear,    I  thin]:,   that  the  operation  of  the  amendment 
must  be  confined,  at  least,   to  community  property  acquired  after  its  pas- 
sage.    I  thial:  the_j'uling  sxjstaining  the  demurrer  to   the  complaint   on  the 
ground  that  there  is"~a  misjoinder  ia  that  the  v/ife  cannot  be  joinedT^as"" 
plaintiff  in  an  action  to  recover"cgmunity  pro'Perty,  must  also  be  6US-^ 
tained:   and  that  \/ithout  reference  to  the  question  as   to  the  nature  of  the 
\7ife*l~interest  in  the  community  property.     If  the  gift  was  void,   the  prop- 
erty still  remained  oocsnunity  property,  and  oas  as  much  luader  the  manage- 
ment and  control  of  the  husband  as  any  other  portion  of  the  community  prop- 
erty-    !r.o__hold  that  the  wife  is  a  necessary  or  proper  party  in  this  case 
would  be  to~h6ld  tJiat  5iie~is  suah  m  every  case  bi-aught  to  recoygr  oufflnua- 
ity  proPeytyT     'me  statute,   as' amended,  does  hot  give  her  a  right  of  ac- 
tion in  this  case,  but  leaves  it  to  the  general  rule.     It  has  been  held 
for  near  half  a  centui-y  that  slie  is  not  a  proper  party  to  such  cictions. 
Che  judgment  and  order  are  affirmed. 

V/e  concur:     Henshavr,   J.;  Harrison,   J.;  LtoParland,  J. 

Beatty,   C.  J.    (concurring) «     I  concur  in  the  Judi^^iaent,  but  upon  a 
ground  somevhat  narrower  tlian  that  tauen  in  the  ppinion  of  Justice  Temple. 
It  does  not   seem  to  me  necessary,   in  order  to  sustain  the  ruling  of  the 
superior  court  upon  this  doaurrer,   to  go  to  the  extent   of  holding  the  pro- 
viso added  to  section  172  of  the  Civil  Code  by  the  act  of  1891  an  uncon- 
stitutional attempt  to  talie   away  from  the  husband  his  vested  rights   in 
community  property  acquired  prior  to  that  date.      I  am  not  at  all  clear 
that  it  does  iiTQpair  any  vested  right.     Bi^t,  allor/ing  the  lav/  to  be  consti- 
tutional  as  to  all  conmunit?/  property,    irrespective  or  the  date  of  its 
acqiiisition  or   of  the  marriage  by  which  the  coiiinunity  v.as  formed,    it  still 
does  not  go  far  enough  to  sustain  this  action.      If  the  husband  malces  a  gift 
or  voluntary  transfer  of  cona.iunity  property,   the   transfer   is  good  against 
him.     Kg  has  no  right   of  action  to  recover  it  back.     The  only  person  who, 
in  any  case,  has  a  right    to  cornplain,   is   the  vnfe,   and  sis  cannot  maintain 
£01  action  to  rovol!3e   the  gift  until  she  has  been  injured  by  it.     Upon  the 
dissolution  of  the  community  by  the  death  of  the  husband  or  by  divorce,    I 
think  tlaat  in  estimating  her  share  of  the  community  property  she  would  be 
entitled  to  have  any  property  given  a\ffi.y  by  the  husband  subsequent  to  the 
act  of  1891  rechoued  as  a  part  of  the  community  assets,  and   that  she  would 
be  entitled  to  reclaim  from  the  donee  enough  to  make  i^p  her  half  of  the 
v/hole,    if   less  than  one-half  remained  undisposed  of.     In  all  ordinary 
cases  this  would  be  the  proper  and  sufficient  remedy  for  any  infringement 
of  her  rights-     It   is  possible  that  a  case  might  arise   in  v;hich  the  cir- 
cumstances would  v/ai-rant  the  institution  of  an  action  by  her  before   the 
dissolution  of  the  community,   but  no  such  circianstances  are  Bhavm  to  exist 
in  this  case-      It  does  not  appear  that  the  amount   of  the  gift  was  so  dis- 
proportionate to  the  amount  of   the  community  property  as  to  endanger  the 
right  «f  the  -Afe  to  her  full  claare  on  the  dissolution  of  the  ccouvtnity. 


412. 


or  to  deprive  the  husband  of  the  means  of  supportir^  the  wife  and  others 
dependent  upon  him.     In  short,    it  does  not  show  any  present  or  prospective 
injury  to  her,  and  he,   of  course,  has  no  ground  of  coniplaint.     If  the  v/ife 
survives  her  husband,   she  -^/ill  get  her  full  share   of  the  conmunity  prop- 
erty out   of   that  which  remains.      If  the  husband  survives  the  wife,  he  will 
get  everything  that  he  has  not  voluntarily  parted  with.     On  this  ground  I 

place  Day  concurrence  in  the  jud^aent.  . 

I—-     o  v^ 


V^- 


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Un^^^^       ^'    "^^"-^  ^    ^   ^  ^ 


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■'♦•  .rrA""    ' 


-3-M' 


413. 


BOiniy  V.  DUTIBIE,  Probate  Judge. 

(SuprercG  Court  of  Idaho.     Jan.   30,  1912.) 
(21   Idaiio,   258) 
(121  Pac.Rep.  544.) 

Appeal  from  Dip  tract  Court,  Ada  County;   John  P.  IlacLaxie,   Judge. 

Appealjby  Edna  R.  Kohny.   administratrlg^of  the  estate  of  Albert  B. 
KohiayrTrom  an  order  by  'uilliam  C.  Dunbar,  probate  judge,  refusing  to 
"ggttle^apd  alio;/  cie  finalTaecount  of  the  adxainistr'atrix  unfil^shs  paid 
aa  inheritance  ta^~^upou  the  one -half"  interest  in  the  coinmuaity  property 
belon'^rinff  to  the  \afe  of"~tHe^.ec eased.  ~~jQdCT:£nt  of  tis  probate  court^ 
reversed  by  the  district  coxirt-     Judgnent  of  the  district  court  afrirmed. 

Ailshie,  J. — This  appeal  involves  the  constriction  of  section  1875 
of  the  Rev-  Codes,  coramonly  !aao\m  a§  tlie  =' lalieri tance  Ta;c  Law."     CBie 
respondent,  Edna  K.  Zohny,   is  the  v/ido\7  of  Albert  B'  Kohny,  deceased,  and 
is  the  administratri;:  of  his  ©state.     On  the  9th  of  Pebx-uary,   1909,  the 
adminietratri:!  duly  made  and  returnee,  to  the  probate  court  of  l,C.a.  c pun ty 
an_aSia:aijEement  of  the  estate  of  her  deceased  husband,  vhich  shor.'ed  the 
estaie_:tojbe^]^^S2^al^^ccC:$2a756gz?6i-^^  v25;  '^-•tTag^the  :eep- 

arate  estate  of  Aibert_B^_jIohny_aDd  Q' 65^77. 70  repreeeated^the  oommunity 
jifitatR^-and  property  of  Albert  BT~Zohi^^~iM  Edna  HT'  iDohny,  his  wife.  The 
administratrj::  offered  to  pay  the  iaJaeritance  tag  upon  one-half  of  the     ^    -^ 

'communi^^prOPer"^3gg-^-3l^-?TlTi^^^^^      rff'^'Kp'r  "ft--p.Trfpt.^  on    imrTRV  "sRCCroiriS?? ,       cr—? 

but  the_probate  "^.ge^fused  to  settle,  approve.,  and  allow  her  final _ac-      ?" 
count  unHI  she  first  Paid  ,tl^ji_ii']:f^Jigr^^.jLqi-  "po"  tT-Q-'ghole   <tf  the  com- 
munity x3roperty_p_iess  her  ezceaption  of  $10,000.      The  acxninis tratri:::  ap- 
pealed to  the  district  courtHfrem'tHe^fuIing  and  order  of  tlie  probate 
judge ^  and  her  contention  '.Tas  tHiere  sustained  and  the  probate  judge  there- 
upon appealed  to  this   pourt. 

Seg^^aLl£7J3 ^f  the  Hev.  Codes  prAvidgs ,_among  other   tilings,  as  fol- 
lows:    -L'AJdLprS'erty  \-;!xich  shall  pass,  by  will  or  by  the  intestate  lav:s 
of  this  state,  from  any  perscn  -.ho  may  die,  seizea~ffi'  possfesseci  ot  x;ne~ 
same  v,}aiie   a  resident  of  this  state  *     *     *  ^all  be  and  is  subject   to  a 
tas  hereinafter  provided  for,   to  be  pail  to  tEe  treasurer  of  the  proper 
"coImtyT"*     *     *~^i     It  necessarily  follows  from  the  plain  v/ordans'  of  the 
statute  tliat  this  ta:t  ie  laid  upon  ^e  transfer  of  any  and  all  property 
"which  ElT^ll  pass  by  will  or   by  the  intestate  laws  of  this  state."     TciQ 
vital  cjUBstion  then  to  be  deternined  is  vfliether  the  one-half  interest 
vhich~tixe  \.lfe  lias  in  the   community  property  passes  to  her  bv  vail  or  by    '^^__^__^ 
flie  int^±ate_jaws  of  tls  state.     Biis  proposition  may  be  further  reduced    ^^ 
for  the  reason  that  it  is  not  contended  that  she  receives   it  by  will,   so 
the  only  remaining  question  is:     Does  she  receive  a  one-half  interest  in 
the  community  proport;'  througli  or  under  the  intestate  ia^TS  of  this   state? 

(7)   It  ought  not   to  be  difficult  to  determine  v/nat  is  laeant  by  the 
words   ''intestate  laws  of  tMs   state."     Cfaa  './Ixi  dies  intestate  dies_with- 
out  leaving  a  will  and  ■.athout  dj^^flfiin,?  of  .hiS-Prnpftrty  .and  estate  ^-_ 
lagJ;_iiiljU£a4__testament.     Re  Greene's  Estate,    68  llisc.  Rep.  1,   124  K,  y. 


v>  -a. 


414. 

Supp.  663;  4  V/ordE  u  Pha-aces,   3732;   23  Cyc.  41,   notes  40  and  41.     The  in- 
testate lav.'s  of  this  state  comprise  that  Isody  of  the  statutes  which  pro^ 
vide  a3!u  prsscri'be  tlie  devolution  of  estates  of  pe.-eons  v/ho  die  v/ithout 
disposing  of  their  estates  ty  last  -/ill  or  testament.     In  other  words  in- 
testate laws  deal  \4th  intostato  estates,  ani  provide  for    the  passing  of 
title  to   such  person  or  perrons  as  the  la;Mnat:ors  in  their  judsaent  anc.    . 
v/isdom  have  thought  best  entiltlod  to  such  estates,     ITow,   then,   it  "beius 
ggnceded  that  Alter  :g.  Kohny  did  not  dispose  of  his  property  and  estate 
ty  v/ill  and  that  he   therefore  died  intestate,  tlx;  question  to  be  determin- 
ed i8.  Did  his  v7ido\;,  Edna  R.  Kohny,  corae  into  the  posiesDion  acd  enjoy- 
ment of  one-half  of  the  community  esta-to  imdor  and  by  virtue  of  the   in- 
testato  laws  of    the  state?     In  order  to   intelligently  determine  this 
question,   it   is  necessary  to  consider   tiie  nature  axd  character  cEC  the 
estate  Imov/n  as  "community  property." 

(1)  Section  3050  of  the  Rev.  Codes  defines  community  property  as  fol- 
lov/s:     "Community  property  is  property  acquired  by  husband  and     /ife,   or 
either,  during-  marriEge,  -v.-heu  not  acquired  as  the   separate  property  of 
either*"     Cliaptor  5,   title  2,   of  the  Civil  Code,  comprising  sections  2674 
to  2693,   inclusive,    is  devoted  to   the  subject  "Kusban?.  and  !7ife."     Section 
2676  defines  the  separate  pro:,:erty  of    the  v/ife,  and  2677  gives  her  the 
"management,  control  and  absolute  power  of  disposition  of  her  separate 
property,"  botii  real  and  personal,   ani  authorizes  her  to   sell  and  convey 
her  separate  property  '..Itliout  procuring  the  consent  or  concurrence  off  her 
husband.     Section  2679  defines  the  separate  property  of  the  husband,   and 
sectioh  2680  is  as   follov/s:     "All  other  property  acquired  after  marriage 
by  eitiier  husbnd  or  -.Ife,    including   the  rents  and  profits  of  the   sepa- 
rate property  of  tlie  husband  and  \/ife,    is  community  property,  unless  by 
the    iastTUcent  "^^j  v/hich  any  such  property  is  acquired  by  the  \Af<B  it   is 
provided  that  the  rents  ani  profits  thereof  be  applied  to  her  sole  ard 
separate  use;   in  v;Mch  tfase  the  management  end  disposal  of  such  rents  and 
profits  belong  to  the  \afe,   and  they  are  not  liable  for  the  debts  a£    the 
husband." 

(2)  Section  2666  constitutes   the  husband   the  agent  and  trustee  of   the 
marital  communit'y,   gnd  is  as  follov/s:      "The*  husband  has  the  management 
ani  control  of  the  community  property,  \;ith  the  lil:e  absolute  pov/er  of 
disposition,   other   tl^an  testairentary,  as  he  has  of  his  separate  estate; 
but  such  power  of  disposition  does  not  e::tend  to  the  homestead  or   that 
part  of  the  coaraon  property  occupied  or  used  by  the  husband  and  A-lfe  as 

a  residence."     It  -,411  be  seen  ftom  an  e::a)niuatioa  of  the  chapter  on  hus- 
band and  vd.fe,   and  especially  the  above  enumerated  sections   that   the  lav,' 
deals  with  the  husbcnd  aaxl  wife  as  a  kind  of  partnership  v/ith  reference 
to  all  their  community'-  .roperty  accumulations.     It  segregates  all  property 
"owned  by  the  v;ife  before  her  marriage  and  that  acquired  afterwards  by 
gift,  bequest  or  descent,  or  that  -..'i-ich  she  shall  acquire  with  the  proceeds 
of  her  separate  property"  as  her  "separate  estate,"  and  it  likewise  seg- 
regates  "all  property  owned  by  the  husband  before  marriage  and  that  ac- 
quired by  gift,  bequest,  devise,   or  descent"  as  his  "separarate  property." 
It  then  proirides  "all  other  property  acquired  after  marriage  by  either 
husband  or  v/ife"  shall  constitute   the  community  property.     The  statute 
therefore  intends  that  all  property  acquired  by  either  the   joint   effort 
of  the  two  moDbers  of  the  community  or  their  individual  snd  separate  effort 
Shall  constitute  a  conmunity  fund  ard  estate.     Tlie  lawmalsers  evidently 


415. 

thoua'ht  it  wise  aud   e.^pedient   in  the  intere£3t  of  business  and  commercial 
transactions  tliat  this  coniiTiuuity  have  a  business  and  inana:p.ns  agent  vest- 
ed \/ith  the  authority  to  mana::,-e,   sell,  and   tr^.nsfer   such  property,  and  so 
thoy  prescribed  by  sectinp  26665   that   the  husband  should  be  the  managing- 
and  sales  agent  and  a  kind  of  trustee  for  tha  community.     The  statute,  1- 
hov/ever,  has  given  to  the  husband  no  better  or  higher  title  to  the  com- 
munity property  than   it  has  given  to  the  \7ife. 

(4)  The  only  difference  or  distinction  v.hatever  the  la".'  has  made  be- 
tween the  husband  and  ^.•ife  v/ith  reference  to   ccxiunity  property  ife  that 
during  tho  continuance   of   the  coiimunity  the  husband  is  tha  crziaging  agent, 
vested  with  absolute  power  of  disposition  of   the  property,   ard  thr-.t  the 
wife  cannot  sell  or   incumber   such  property  except  in  specified  instcJices. 
The  receipts,  hov;evor,  from  any  disposition  that  may  be  mrde  of   the  prop- 
erty,  still  raaain  conmunity  property,  aijd  the  vAfei^s  interests  in  the  re- 
ceipts from  any  sale  of  community  property  are  just  as  great  as  they  were 
in  the  original  comgiunity  property  v/hich  was  thus   sold  or  transferred. 

(5)  Section  5713  of  the  Rev.  Codes,  v.h.icli  was  in  force  at  the  time  of 
tho  death  of  Albert  B-   Koliny,  provides:    "Upon  the  death  of  either  husband 
or  v/ife,   one-half  of  the  cor.Tiiunity  property  shall  go  to  the  survivor,   sub- 
ject to  the  coixnunity  debts,    rixl   the  other  half   shall  be  subject  to  the 
test-^mentary  diBpcsition  of  the  deceased  husband  or  wife,   subject  also  to 
the  community  debts >     In  case  no  testamentary  disposition  shall  have  been 
mcde  by  th3  deceased  husb::nd  or  \dfe  of  his   or  her  lialf   of   the  community 
property,   it   slr.ll  descend  equally  to   the  legitimate  issue  of  his,  her  or 
th3ir  bodies.     If  there  be  no  issue  of   said  deceased  living,   or  none  of 
their  representatives  living,  then  the  said  coirmunity  property  diall  all 
pass  to  the  survivor,  to  the   e::clusion  of  collateral  heirs,   subject  to  the 
community  debts,    tho  fcmily  alitov/ance,   and  the  charges  and  ercpenses   of 
admi ai E trat i on - " 

(5)   The  foregoing  section  of  the  statute  recognizes   the  husband  and 
wife  as  equal  partners   in  the   community  estr.te,  and  it  authorizes  each  to 
dispose  of  his   or  her  half  by  \.-ill.      It  also  provides  that  the   survivor 
shall  continue  to  be  the   oviier  of  half  of   such  property  subject  only  to 
the  payment  of  tha  community  debts.     Kiis  statute  clearly  and  ■unmistalobl^ 
provides  that  the  surviving  spouse   talB  s  his  or  her  half  of  the  community 
property,  not  by  succession,   descent  or  ixiheritance,  but  as  survivor  of  the 
marital  commimity  or  partnership!     The   sans   section  provides,  fiarther, 
that  in  the  event  there  be  no  issue  of  the  mari'iage  living  at  the  time  of 
the  death  of  one  of   the  spouses  and  he  or  she   leaves  no  \all  or  testament, 
the  half  of  the   community  property  which  belonged  to  the  deceased  shall 
go  to   the  survivor   as  an  heir,   cnC,  therefore,  by  descent   end  under  and 
by  virtue  of  tho   "intestate  laws  of  this  state."     '..laile,   therefore,   tho 
survivor  in  tMs  case  receives  the  entire  comiTiunity  estate  by  reason  of  the 
death  of  her  husband,  half  of   it  v/as  already  hers,  and    the  only  additional 
interest  or  right  she  acquires   in  that  half  by  reason  of  the  death  of  her 
husband   is  the  right  of  managemsiat,  control,  aad  disposition.     The  death 
of   tha   statutory  managing  agent  and  trustee  leaves  the  v/ if  e  '.Ithout  svch 
agent  and  reduces  her  to  the  statui  of  a  feme  sole,   and  the  la">.'  authorizeB" 
her  to  act  in  her  ovm  right.     Death  has  v/orlced  a  dissolution  of   the  cornet 
munity  partnership,   and  left  the  surviving  partner  to  act  for  herself. 
She  also  receives  the  other  half  of  the  community  property,   but  by  an  en- 


416. 

tiroly  diffe-ent  means.     It  coraec   to  her  lil:e\7i60  ty  reason  of  the  de-'.th 
of  the  hiisbnnd,  "but  throu^  the  means  of  ho--  heirship.     The  ctatute  iiakes 
her  an  heir  of  her  husband,  and  so,   in  the  absence  of  testamentary  dis- 
position of  the  husband's  share  of  the  community  property,   she  inherits 
his  hrlf,   rnd  ther-afore  talrec  his  share  under  the  intestate  laws  of  the 
state.     It  is  clear,  ho\/ever,  that  she  does  not   inherit  her  share  of   the 
common  property* 

Counsel  for  rj?pellant  hr.vo  called  our  attention  to  the  case  of  Hall 
V.  Johns,   17  Idaho,   224,  105  Pac.  71,  v/herein  this   court  said:      "The  title 
to  community  property  is  in  the  husband,  and   during  the  e::isteDce  of   the 
conmuni  ty  the  vife's  interest  in  the  community  property  is   a  mere  expect-. 
ancy«"     That  case  involved  tiie  right  of  the  vafe  to  contract  in  a  matter 
v/hich  did  not  hcyo  reference  to  her  separate  i^roperty  ard   esta.te  and  to 
bind  the  community  thereby,   caad  the  above  observation  v/as  mr.de  tn  the 
course  of  a  consideration  of  the  power  of  tha  wife  to  bind  herself  or  sep^ 
arate  estate  or  the  commimity  estate  by  contradt  v/hich  had  no  reference  to 
her  separate  property  and  estate,     it  ;;as  held  that  she  could  not  bind  the 
community  in  such  iganner,   and   in  that  coanection  it  vns  suggested  that  her 
interest  during  the  continuance  of  the  marital  relation  was  a  mere  e::pect» 
ancy.     Similar  language  ha^  been  frequently  used  by  the  courts  and  es- 
pecially in  California,  as  \7ill  be  seen  from  an  e:;amination  of  In  re  Bur- 
dick,  112  Cal.   387,  44  Pac,  734;  Sprectels  y.  Spreclcels,   116  Cal  539,  46 
Pac.  228,  56  L.  R.  A.  497,  58  Am  St.  Rep.   170;   and  Estate  of  lloffitt,   155 
C-1,   359,    95  Pac.   653,  1025,   20  1.  R.  A.    (U.S.)   207.     The  California  court 
in  the  Estate   of  lloffitt,  supra,  hold  under  a  statute  almost  identical 
with  ours  that  the  interest  of  the  v/ife  in  the  ccsmunity  praperty  during  '-.' 
the  continuance  of   the  community  is  a  mere  e:5?ectancy,  and  that  upon  the 
death  of  the  husband  the  v4fe  takes  her  share  of  the  community  property, 
not  as  survivor  or  in  her  a.:n  right,  but    (in  some  manner  not  clearly  dis- 
closed)  under  the   intestate  laws  of  the  state  or  the  laws  of  descent  and 
succession,  and  that  she  is  liable  to  pay  jin  iaheritance  tare  on  her  half 
of  the  euoh  estate.     That  c~se  apparently  rests  ^^jon  the  authority  of  In 
re  Burdicl:  and  Spreclosls  v«  Spreclcels.     Tlie  Burdiclz  Case  held   that  the 
"wife  takes  her  interest  in   svch  property  (community  property)  by  way  of 
succession  from  the  husband,    axd  through  distribution  of  his  estate." 
llr.  Justice  Harrison  dissented  from  that  vie*;.',   and  \,'rote  a.  separate  opinion 
d&rjing  vfith  this  phase  of  the  statute,  aai  lir.  Justice   Garroutte  concur- 
red in  tliis  dissent.     The  opinion  by  J  ustice  Harrison  is  very  clear  and 
concise,  and,    to  our  minds,  e::presses  the  logical  rjid  reasonable  interpre- 
tation of  the  statute,  and  is  better  reasoned   than   the  opinion  of   the 
coutt.     Among  other  things  he   cays:     "She  receives   it    (half  the  community 
property),  hov«ver,  not  as   the  heir  of  her  husb.nd,  but  in  her  a:-:i.  right 
as  her  half  of    the  property  v^iich  vss  acquired  by  herself  and  her  husband 
during  the  marriage,   but   freed  from  all  restrictions   in  its  use  and  anjoy- 
nie;$t,   and  vd.  th  ihe  sane  title  as  if  tlB  marriage  htd  been  dissolved  by  a 
decree  of  divorce,"     The   community  property  law  has  been  in  force  in  V/ash- 
ington  since  about  1869,     |t  has  been  changed  sli^ttly  from  time  to  time 
with  reference  to  the  right  of  disposition  of   the  property  and  the  manage- 
ment and  control  by  the  husband,  but  the  commtmity  propa-ty  law  in  thS 
main  ha.s  been   in  froce  continuously  in  that  state.     In  V.'arburton  v.  White, 
18  XJash.  511,   52  Pac.  233,   552,  the  question  arose  as  to  the  necessity  of 
the  wife  joining  the  husband  in' the  disposition  c£    coianunity  property. 
The  case  v;as  carried  by  writ  of  error  to  the  Supreme  Court  of  the  United 


417. 

States,  and  In  V/crliui-tou  v.  '"'hito  176  U.  S.  405,  20  Sup.  Ct.  404,  44  L. 
Ed.  555,   the  Zujrerm  Covst  of  the  United  States,   speckln^j  throu£-h  I'x.  Jue- 
ticG   (now  Chief  Justice)  V.hite,  reviev;ec.  the  V/ashington  decicions   on  the 
Subject  aM  coneidered  the  matter  at  some  length,    era  in  corarcentin:^  u^^on 
the  Tlciht  or  interest   of  the  wdfe  in  the  community  property  said:     "prop- 
erty acquired  during  marriage  ••./ith  ccrnTiuuity  funds  became  an  acquet  cff  the 
community,  aai  not  the  sole  property  of  the   one   in  whose  name  Vae  property 
T./as  brought,  although  by  the  la^/  eriistia:,-  at  the  time  the  husband  v/as  given 
the  manasercont,  control,  and  pov;er  cff  sale  of  such  property;   this  ri^ht 
bsing  vested  in  him,  not  because  he  v/as  the  occlusive  owner,  but  because 
by  law  he  v;as  cceated    the  agent  of  the  coimunity,    the  proceeds  of  the  prop- 
erty bein^-  sold  by  him  becoming  an  acquet  of  the  community,  subject   to  the 
trust  v;hich  the   statute  ijinposed  upon  the  husbard.,   from  the  very  nature  of 
the  property  relation  engendered  by  the  provision  for   the  community."     In 
iiruett  V.  Reade,    220  U*  S.  311,   21  Su;^^*  Ct.  425,   55  L.  Bd.  477,    the    war- 
burton  Case  was  quoted  -..Ith  rpproval,  ard  the  court,   spealring  through  LIr. 
Justice  Holmes,    eaid:      "It  is  very  plain  that  the  '.-'ife  hss  a  greater  in- 
terest thrn  the  mere  possibility  of  an  e:cpectant  heir;   for  it   is  conceded 
by  the  court  below  and  everyv/here,  we  believe,  that  in  one  v/ay  or  another 
she  has  a  remedy  for  an  alienation  made   in  fraud  of  her  by  her  husband." 

Ilr.  IlcXay  of  the  Soattlo  bar  in  his  worlr  on  the  La-w'  of  Community 
Property,  p.  542,   says:      "In  V/ashiugton  the  question  has  not  been  express- 
ly decided  -whether  the  wife  talres  her  moiety  by  inheritance  from  her  hus- 
band, but  the  decisions  defining  her  right  are  so  clerr  and  decisive  that 
but  one   conclusion  is  possible,  viz.,    tliat  she  does  not.     Assuming  this 
conclusion  to  be  true,   no  inheritance  ta::  could  be  imposed  on  her  moiety  . 
on  tlTo  death  of  her  husband."     In  a  note  to  the   same   section  (476)   the 
author  says:      "The   state  board  of  ta;:  commissioners  oiipressly  disclaim 
any  power  to    impose  an  inheritance  tsx  on  the   eurvivor|E   shire  of  the  com- 
mon property."     Since  tha   interests   of  both  husband  and  wife  are  the  safflB 
and.  equal  in  anc.   to  the  communitj'-  property,  a sd  each  ta>c  s  one-lialf  upon 
the  death  of  tlie  other  ar£.  each  mry  dispose  of   a  cneOhalf  interest  there- 
in by  v/ill,   it  is  clear  to  us   that,   if  the  -.Tife  must  pay  an  inheritance 
ta:-:  on  hsr  half  of  the  property  upon  the  death  of  the  husband,    the  husband 
would  like\>rise  be   obliged  to  pcy  an  inheritance  ta::  on  his  half  of  the 
property  on  the  death  of  his  v.lfe.     The  law  clerxly  placfes  them  both  on  sn 
equality  in  tMs   respect.     Hiis    illustration,  hovever ,   accentuates   tte  un- 
reasonableness of    the  contention,  for  no  one  claims  that  the  husb-nd   is 
required  to  pay  such   ta::  on  his  interests  in  the  community  estate. 

Counsel  have  called  our  attention  to  a  number   of  other  authorities 
v/hich  consider  and  discuss  this  question,  but  ve  fhall  not   enter  u:^-on  an 
ana.lysis   of  then  here.     The   follov;ing  are  some  of  the  cases  '..hich  deal 
wit2i  tliis   question:     "/right  v.  Kays,   10  Te::.   130,   60  Am.  Dec.  200;  Edv.'ards 
V.  Bra.m,   58  Te;:329,  4  S.  '/.  580,   5  S.  ■".  87;   larclier  v.  Hurray   (C.  C.) 
54  Pod.   626;   Tustin  v.  Adrjns   (C.C.)  87  Fed.   377;  Kolyoke  v.  Jacl:sOn,   3 
Uash.   T.   235,   3  iac.   841;  Adrjno  v.   Black,   6  V.'ash.   528,51  Pac.   1074;    In  re' 
Hill's  Estate,    5  Vfr.sh.   285,   oZ  iac.   585;   Starbucks  Estate, 137  Afp.  DlTe 
866,   122  IT.  y.  Supp.   585;  Re  Green's  Estate,    58  I.5isc.  Rep.   1,   124  H.  T. 
Supp.  863;  Re  V/eiler's  Estate,   122  H.  Y.  Supp  608;   Billings  v.  People,   18a 
111.  472,   59  N.  E.    798,   59  L.  R.  A.   B07;  Estate  of  Gordon,   186  K.  Y.  471, 
79  U.  3.    722,    10  L.  R    .  ;..    (E.G.)   1089. 


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4ie. 

(^J  ^e  couclude^hait  ua?oa  the  death  of  husbsiul  or  wife  the   survivor 
p;^s_qne-^?SJX:^QlISlx^--;^im^i^^  in  his   or  her  ox^  vy:^hJiji^_^^ir^J^^i7i^^^-^rrA — - 
is  aot^liable  under  sedtion  1675  to  .^ny  n^aJ^hBritPA■^c7^1^^^r7,P^n^rriyr-^^y^,*^ 
est-iiLj;_h3  coamunitv  estate^.  ' "^ — _ 

The  judgjieat  is  affirmead,   with  costs  in  favor  <£    respondeat , 


.vS»-p     ..-aL^'V-<2-t^--'C*-*'^cc.'C^ 


419. 


ITLETIIT  V.  AD^IB   et  al, 


(Circuit  Court,  D,  Washington,  S.D.     Llay  17,   1898.) 

(87  Fed .Hap.  5V^.) 

^is  Y;as_a  suit  in  equity  "by  Frances  I.I.   Tiistin  against  Phoe"be  D. 


Adams  aid  Spencer  Jaco'bs  to  determine  the  rights  of  contesting  homeEtead 
claimants  to  public  landed 

Kauford,  District  Judge .     This  suit  is   to  obtain  a  judicial  deter- 

.  mination  of  Cie  riglits  of  couterjling  hcnioctoad  clanmaats  under  the  land 
laws  of  the  United  S  tates.  On  Deggnoer  15.  1689.  the  coMolaiprint,  I'rs^ 
France s_Tus tin,   offered  to  file   in  the  Lliited  States  district  agJid  of- 

Iflce^at:  ITOTtii  Yalciaa  her  application  to  enter  as  a  hoirestead  the  tract 
of  land   in  contrcrsrersy,  tut  her  application  was  rejectecTliy  the  regiG^ter 

~ihd  receiver  fo r~aio^reacon  that  the  land  is  part  of  an  ddci-niragngd^ssar 
tion,  and  7zas_a-t-jPia^time  .giri2P.0Sfi5Zt5ZEe-included-4a— fiio   lard  graat-tO- 
the  Northern  Pacific  Railroad  Company.     Tn  SLjTr-.finuent  j^ceeding?  in  the 
land_de2artment   tlie  claim  of  the  railroad  company  has  teen~set  aside. 
Su'bserv.ent'to  tlie  date   of  complainant's  application  to  enter  the   land 

as  a  home st"ead~ til 0  d"e"?eMaBt~nrs"r~idams  claitigd  the-saae— trac-t-as-a . 

homestead,  an.d~in~th5~cxsffre^st^I»dceearings  Taetween  the'n  the ^Tand'^gpart'- 
Tngi^^:^jrHLllj>  uuuKled  tiiat~nfsTl[dams~had~tKe^'et"teFrl'gbt     ahd  a  patent 

-conveyin-  the_titlo  tos'teenTis's^d  to  her.     In,  the  emended  TDin~of ~cOHP- 
plaint  filed  herein,   th©  decision  of  tlB  secretary  of  tl'B   interior  con- 
taining a  recital   of   tlie  facts  and  the  secretary's  conclusions  of  law  is 
set  forth  in  fiill,   and  the  complainant  alleges   that   the  facte  as  foi-:nd 
and  set  forth  in   the  secretary's  decision  are  such  as    to  entitle  ?£r  leg- 
ally to  a  decree  declaring  ter  to  "be  the  real  owner  of  the   land,   and  that 
llrs.  Adams  holds   the   title   as  trustee,    and  recjuiring  1:0 r  to  convey  the 
same   to  complainant.     Bie  defendants  have  demurred  to  the  amended  "bill, 
and  the  case  lias  been  argued  and  submitted  by  counsel  for  the  parties, 
respectively,  upon  the  demurrer. 

In  tlE  arsuEDnt  counsel  for   the  c omplainant   insists   that  the  only 
material  facts  shown  "by  the  decision  of  tto  secretary  of  the  interior 
are: 

"First.     That  on  the   13th  day  of  December,   1889,    tie  plaintiff,    • 
herein,   Frances  II.   Tustin,  duly  applied  to  enter  the   tract  of   l.'nu   in 
controversy  herein  as  a  honEstead  under  the  lard  lav/s  of   tho  United 
States,   and  thereafter  fulfilled  all  lav/ful  requirements   in  relation 
.  thereto.     Second.      Ihat  a  year  and   ten  days  afterwards,    to  mt,  December 
25,   1890,  defendant  lie  rein  Phoebe  D.  Adams  ^plied  to  enter  the  same 
tract  as  a  homestead.     Tliird.      Ihat  defendant's  application  was  at  first 
rejected  on  twio  grounds,    one   of  which  was  plaintiff's  prior  application, 
but   that  this  ruling  vss  afterwards  reversed  by  the  va:.'iou5   officers  of 
the  department,  and  decided  in  defendant's  favor,   and  a  patent  to  said 
lEinds  issued  to  her.' 

Biis  statemont   of   facts  is,    indeed,   quite  simple,  ard  siccess  would 
be  easy  for  the  complainant  if  her  counsel  could  eliminate  from  the  case 


420. 

all  otlior  facts,  end  confine  tho   inquiry  to  ouoBtionE  as    to  tho  rights 
of   thj  particG  ari.-ius  xrom  Mp.  statement.     V/ero  the  coutrcvoTTsy  restrict- 
ed '.vithin  the  navioxf  linitiJ  propoitJcd,    I  shDvad  agree  v/ith  him  that  tho 
only  logical  and    logal  noncla^■!ion  to  be  drawn  v/ouH  bo  that  hie  clisnt 
is  entitled  to  the   land.     Tlie  prerai'Jos,  however,  arc  false  in  tv/o  par- 
ticulars, and  the  argument  "buiit  thereon  is  necessarily  unsound.     Tc   the 
first  place,   it   is  not  true   that  the   secretary  of   the   interior,    in  his 
decision,   found  as  a  fact  that  tho  complainant   "fulfilled  all  lav/ful  re- 
quiremonts  in  relation"   to  her  homestead  claim.      The  law  requires  as  a 
prerequisite   to  perfecting  a  title  to  land  under  the  homestead  lav;  that 
the  homestead  claimant  shall  nalco  a  peaceable  entry  upon  unappropriated 
public  land,  and  establish  a  hcrr.3   thereon,  by  either  erecting  a  dwelling 
house,   or  purchasing  from  the   cv.ner  a  house  suitable  for  habitation,   and 
continued  residence  upon  and  c-altivaticn  and    improvoaent   of  the   ]and. 
Iho  secretary's  decision  contains  no  findings  of  such  facts   in  the  com- 
plainant's favor. 

In  the  second  place,    it  is  necessary,    in  order  to  reach  a  just  deci- 
sion in  accordance  \vith  tlx   legal  rights   of  the  parties,    to  take  into 
consideration  tta  facts  as  to  the   status    of  each  party, — as  to  the  nature 
and  condition  of  the   land,   as   to  the  date  and  nanner  of   talring  pmses^ion, 
as  to  the   improvements  made  upon  the   land,   and  as   to  the  good  faith  of 
each  in  meeting  tlx  requirements  of  the  homestead  lav/.     Ihe  facts  ?:et 
forth  in  the  secretary's  decision,   \^ich  I  deem  important  and  material, 
are  as  follo;.s,   viz.: 

"Ihe   tract  here  involved,  viz.    the  IT.  T7.  l/4  of  Sec.   31,    T.   13,  H. , 
R.  19  E.,  north  Yakima,  \7ashi;agton,    laud  district,    is  v;ithin  the  primary 
limits   o±"  the  grant   to  the  Uorthern  Pacific  Eail\7ay  Company,  branch  line, 
the  v/ithdra'>7al  for  the  benefit    of  \i'h5oh  became' effective  July  11,    1679. 
llap  of  definite  location  was  filed  Ilay  24,    1884.   *  *  *     in  1830,  J.  II. 
Adams,   v/ho  '.7as  at  that  time  receiver  of   the   lazd  office  at  north  Yakima, 
took  possession  of  tie  tract,   arf:  began  fencing,    irrigating,  and   otherwise 
impra.'ing  it.     Supposing,   under  the  rulings  of  the  department  at  that 
time,   that   it  v/as  railroad  land,  lie  filed  v.'ith  the  ITcrthern  Pcx;ific  Rail- 
road Company  his  application  to  purchase  said  tract  when   the   company 
should  have  acquired  title  thereto,  and   on  June  22,   1D61,  he  received 
from  the   general  land  agent   of  said  company  a  clird  aclcnowledging  the  re- 
ceipt  of  his  application.     In  the   spring  of  1884,   Joshua  L.    Ii^stin  built 
a  small  house  on  one  corner  of  the  tract,   and  on  March  21,   1884,  he 
filed  his  homestead  application  for  the    land.     This  application  v/as  re- 
jected for  the  reason  that  *it  does  not  appear  or  is  not   shown  that  the 
tract  \7aB   occupied  bona  fide  at   tiie  date  of  v.lthdravval  of  June  11,    1379, 
for  the  benefit  of  the  branch  line   of  the  northern  Pacific  Railroad.' 
Tost  in  appealed,   aixl  a  hearing  v/as  ordered  by  yovx  office  to  determine    ■ 
tlie  status  of  the   tract.     At  this  hearing,  v/hich  v/as  held  on  Hay  7,   1884, 
Adams  "^/as  allov;ed  to  intervene.      Hie  record  of  the  evidence  sr.bnitted  at 
said  hearing  remained  in  the   local  office  unacted  upon  until  September 
20,  1886,  -..hen  it  \!z.s  sent  up  "dth  the  report   C:iat  the  case  had  been  dis- 
missed at  the  request  of  all  parties,    Tijittin  having  filed  a  dismissal   of 
his  contest  on  September  7,   1868.     July  50,   1S89,  Adams,   who  had  become 
register  of  the  land  office  at  Spokane,  V/ashington,    filed  his   timber- 
culture  ;^plication  for   said   tract.      Pnis  application  vns  \7ithdrawn  by 
his  attorney  on  September  21,    1889,    and  on  the   same  day  the    tract  was 
listed  by  the  northern  Pacific  Railroad  Company.     December  13,   1889,  Ilrs. 


421. 

Francos  11.   TUstin  applied  to  enter  this  tract  as  a  honjostead,  allesing  in 
an  affidavit  filed  v/ith  l:er  application  that  she  was  the  v/ife  of  Joshua 
L.    Tustin,   aoi    that  she  had  been  deserted  ty  him  on  December  6,    1669. 
Said  application  \/as  rejected  on  account   of  the  railroad  selection.,   and 
IlTE.    Tustin  appealed.   *     *     *    About  Peccmber  1,   1890,  Adarac  died,   and 
on  Dec  ember  23d,   follov/ins,  his  widov/,  Ilrs .  Phoebe  D.  Adams,   applied  to 
raato  horcoctead  entry  of  the  tract  in  question.     Said  application  \/as  re- 
jected on  account  of  the  pendency  of  the  railroad  company's  appeal  and 
the  prior  application  of  Iirs.    Tustin,   and  from  this  action  Ilrs ,  Adams 
appealed,     Sbs  also  filed  motion  for  leave  to   intervene   in  the  contest 
betvreon  Ilrs.   Itictin  and  the  railroad  ooqpany,  and  this  motion,    together 
v/ith  all  other  papers  filed  by  her,  \Tas  forwarded  to  the  department. 
*     *     *     Th.e  evidence  chmvs  tl:iat  from  the  time  J.  II.  Adams  took  posses- 
sion of  this  tract,   in  1680,   up  to   the  date   of  his  death,  ho  was  con- 
stantly improving  it;   that  lie  brou^it  v.'ater  several  miles  to  irrigate   it; 
that  at  the   time  of  Ms  death  practically  the  v;holo  tract  was  irrigated 
and  under  cultivation-,   and   that  ho  had  tlcreon  a  socd  dv;ol ling  house  and 
several  outhouses.     Since  his  death  his  v/ife  and  children  have  ccntinued 
to  reside  on  the   land.     In  1886,  Adams,    in  order  to  settle  the  dicptito 
betVAsen  himself  and  Joshua  L.   Tustin,  paid  Tustin  054:0  to  relinquish  his 
contest,   abandon  all  claim  he  mijht  Mve    to  the    tract,  and  change  his 
residence.  *     *     *    About  the  last  of  Hay  or  first  of  June,  1889,   TuGtin 
aai  liis  wife  moved  to  the  Big  Bend  country,   one  hundred  and.  fifty  miles 
distant,  where  Tustin  filed  a  pre-emption  declaratory  statement  for  a 
certain  tract  in  Douglas  county,  Washington.     They  camped  on  this  pre- 
enjjtion  tract  in  the  Big  Bend  country  for  two  days,  and  then  went  to  the 
home  of  Ilrs.    Tustin' c  mother,   adjoining  the  land   in  controversy,  vAiers 
ttey  remained  three  weeliE.     At  the  expiration  of   that  time    they  again 
tooic  up   t3:eir  residence  in  the  house  they  had  foimerly  occupied  on  the 
tract  in  dispute,   the  sane  house  that  Olictin  had  cold  to  Adams  only  a 
short  tiine  Before,     The   testimony  is  conflicting  as  to  \Thether  or  not 
they  made  a  forcible  entry   on  the  land  at   this   time.     A  preponderance  of 
the  evidence  shows,  however,  that  at  the  time  the  "lustins  made  their  orig- 
inal settlement,  in  1884,  Adams  had  all  the  tract  inclosed  with  a  wire 
fence,   e::cep  t  one  coriasr  down  under  a  hill;    that  Tustin  built  his  house 
on  that  uniuclosed  corcer;   that  aftervTardc  Adams  e::tended  hie  fence  en- 
tirely arourd.  the  tract,  and  Tustin  made  an  opening  ttiere in  for  entrance 
and  o::it;   that  after  Tustin  and  his  wife   left  in  the  spring  of  1889  Adams 
had.  the  opening  closed;  and   that  \*en  the  Tustins  returned  to  the  land 
they  brolje  the  fence  to  get  in.    December  5,   1889,  Joshua  L.  Tustin  left, 
and   three  days   later  Ilrs.    Tustin  made  out  her  honestead  application  as 
a  deserted  wife,   filing  the  same   on  December  13,   1889.     A  decree  of  div- 
orce v/as  granted  Ilrs.    Tustin  on  July  13,   1891.     To  improverTentshave  been 
placed  on  the   land  by  Ilrs.    Tustin  since  her  return  from  the  Big  Bend 
country,     m  the  fall  of  1890  she  attcaapted  to  have  some  plowing  done, 
but  \vas  restrained  by  an  injunction.  *     *     *  •> 

^^n  the  argument  counsel  for  the  complainant  takes  the"  ground  that 
on^the~15th  d.ay--5£-IIec.^ber..   1889,  Lir.  and  Ilrs.  Adams  Jjadjncrggsatng  as 
homestead  claimants  because  they  haci.  not  thearfile^Ta  homes tead^pplica- 
TTorriargie  land~^fTce,  and  on  thig^gJgJ^^^^gj^-SJgJ^ialgMg  a  proper^ap^; 
-Pi ic_a.tiJgL_^p  enter~  tlie  ian"c[~anrho;^¥tead7  and  then  a5:d  tliereby  her  rig^t 
to  the  land  v/as  initiated.     In  effect  this  argument  is  a  disclaimer  of~    ~ 
aayT^it  based  iipon  prior  nnf-upfl-tion,    or  irf^provement  of  the  land  by  llrs.H  ^"^ 


r 


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^-^^-*^<:^^ 


P 


422. 

Tustin  or  her  huctand,   and   I  understand    that  her  vi^ole  caso  res^ts  upon 
what^he  hersoIT  ivubi  Jung   on  glrd-l^j^lJ^:bgue7^^^^t^~'gEe"  dp.te  g:eationed7~^ Le t 
it  be  canceded   JXat  at   ohe  timo  Its.   TiiBtin  t^rdered  her  hemes t3?,d  appli- 
cation for  filing  in  th'3  land  office   the  AdxQ^es  had  no  standing  a'^  r.or^- 
etoad  claimants,   ar.d  that  tba  defendants'    title  v.-as   initiated  s';['b?n<5a'f.:at 
to  DecauDer  13,   1839,   still   thsy  vrare  in  possession  of  the   land,  had  it 
inclosed,  and  were  the  ov.ners  of  th3   ioprovoients  whjch  they  had  jK'Ae  anl 
•  paid  for.     Their  occtipatiOD.,   inclosme,   and  cultivation  of  the  latid  was 
not,    in  view  of  the   facts  recited  in  the  secretary's  decifJion,  c^la  fide. 
Eo  individual  ira-s  wronged   therety,  and.  only  the  eoxern'::ent  of  the  United 
States  could  legally  institnte  proceedings   to  dicpossess  them.     Ucler  the 
circumstances  aentionoa,  l!rs.    Tustin  could  not  legally  initiate  any  righ; 
to   the  land  tmder  the  hcmectead  law.     "Hie  policy  of  the  goverivro^n.t  in 
offering  puVlic  ia^vls   to  the  heads  of  families  upon  tho    term^  presorihed 
in  the  homestead  law,    is  henevclent,  ard   the  act  is  to  be  lilierally  con- 
strued in  favor   of  the  class  of  citizens  intended  to  "be   its  hmfj^iciarisp, 
but  the  heneVGlent  spirit  of  the  law 'does  not   sanction  siu-'.h  rar.Jc  iJijus- 
tice  as   the  forcitle   cseiz-ir©  and  appropriation  "by  one    individual  of 
houses  aM   costly  improvements  owned  by  others,  nor  the  forcible  br'ealcing 
of   inclosiares,  even  thou^::-   as  agairst  the  gcrerrru-ent  the   incloc-^ires  are 
unlawful.     Atherttn  v.  FJWlsr,    SS  U.S.   513-520;   Eavs  V.  Ilining  Co.,    160 
y.S.   303-319,    IS  Sup.  C^..  282.     The  house  occupied  oy  the  corrplainant 
upon  the  premises  was  erected  by  her  huaband  au"ter  her  marriage,   a:od  be- 
fore her  separation  frort  hi-^A;    therefore   it  was  coffiir:'Wity  pr.'P'vrty  under 
the   laws  of  ^achxEgton  territoiy   in  force  at  that  time.     By  virtcts     of 
her  marriage   the  coraplainant  had  sn  interest  in  the  house  as  co>rrr.unity 
property,   aM  she  never  acijuiraa  any  other  right   to   it.     The  houpe  being 
■upon  public  lard,   the   only  title  which  its  ownf^rs  coiild  claim  \vas  a  chat- 
tel interest,  am  the  husband  being  the  maniger  of  the  co)ir7.unity  property, 
and  expressly  authorised  'ffy  the  statu '.es  then  in  force  to  sell  and  dis- 
pose  of  the  coraianiry  personal  propcrt-y,   the  costract  v*\ich  he  max"?;, 
whereby  he  sold   the  houne  to  J.  M.  jLdfliiS  for  a  consideration  of  J;;540, 
was  Via  id,  and  the  coin>laina--t  was  bouxd  by  it,  exr.otly  ao  she  m:ght  be 
bound  by  any  other  contract  made   throvigh  a  duly  au <-:';■. or i zed  agent.     Ab'^o* 
lute  want  of  goud  faith  on  the  part  of  the  conplainaat  in  claiming  this 
land  under  the  homestead  !?-■«'  clesjrly  and  concluPiToly  appears  by  the 
taW-Bg  possessicn  of   this  houre,  \-!hich  hisr  hrstand  had  previously  Sold 
to  J.  M.  Ada-nfi,   -ra.thout  his  ccnsenc.      I  consider   that    fiie  demurrer  to 
the  amended  biH  should  be  sustained  for  the~reasons   that   it  is  st-.o'o 
conclusively^y  ^^-^  f ladings  o£  the  secretary  of  t^^/Jfefi ur   Ihab    the 
JliM_MiI5ot>  on.  or  saoi.&q^nt-toHl?eso-jib3r  15,  -W^t  -sa^-jggtrt9zegt?y-by 
the  coiaplairipJlt  ^.mder  the  homestead  law,  and  she  has  not  fulfilled  any 
of  the  requiremonts  of  the  law  as  to  x-esldecce  upoQ  and  ^raltivatirQa-and 
impraviaBentof  the  lasd. 


423 . 

JEWIIB  YAKS,  Re sp 071-16111;,  v.   P.  II.  PUGI-I, 
6t  al.,  Appellaiits. 

(13  TTaeh.  73.     1095.) 

Appeal  from  Superior  Court,  Spolsane  County— Hon.  Uallace  Ilount, 
Judge.     Affirmed. 

The   opinion  of  tlse  court  \7aB  delivered  ty 

Hoyt,   C.   J. — This  action  r;a.s  >irfiijght^  to  recover  •nos^esfl.^.Q>i__Qf  certain 
persor.al  properly,   and  daaase-^  for  i.tn  detention.     Fr07a  defcudont'c  3ia-'3- 
l!Vor  it  appeared  mst' thfur  ciai:ii  vifao  I'ouniodTupon  a  lovy  unier  .-^.ttac'^^ient 
in  a  suit  against  th.3  plaintiff  and  her  htisbard.     Tlie  plaint  raff's  rjgi'.t 
tfi  png«;f»r,p|oi-i   iff  -Prtnynipfl  irpn~)  her  clalii  tliat  the  pi'operty  'bclon'^'el  tJ  her ; 
jtMi-^af  the  dofendrntB  upon  the  claim  -cha.:  it  T.as  co-raunitY  pro^^rty. 
And  the  question  p:>'e.seuted  ty  these  adverse  claims   is  the  prin(j:-pai  one 
\^ich.  v.B  are  called  upon  to  decide. 

It  ^Dpearod  from  the  testimony  that  the  property  had  teen  acquired 
"by^  the  ^7ife_v7ith  money  vhich  she  had  received  from  por^ons  v/hcm  Cie  htid 
kept  as  boarders,   ani  for  v/ork  done  hy  her  as  a  dro£:-f!0E3<.nr«      it  also  ap- 

"peared  tEat"  gefaM'ti  -^he  conoented  to  enf^ge   in  the  b^is  meso  ty  mcsiiR  of 
vihich  this  money  was  ohta.iiirj.1,  her  hrsbc-id  told  her  thr.t  if  fhe  did  so, 
whatever  money  she  rado  should  be  hor   separate  prober 'by.     ^nd  to  fiir-ther 
establish  the  fact  that  as  between  the  husband  and  mfa  it  was  under- 
stood  to  be  the  business  of  the  wife  aiid  not   of  the  coLrr.inity,    it  t.-ss 
shown  that  the  hutiband  pa^d  the  v/ife  for  his  board  the   sa;rie  os  did  other 
boarders.     IThat  the  earnings  of  the  wife  a^J  v/ell  as  those  of  the  hn.'band, 
wh^i   they  were  liV^ios  toga-Q-.er,  prima  facie   belong  to  the  corinurity  has 
been  held  to  be  t>L3  law  in  mort,    if  not  a'Q,   of  the  state?  v^iic}-.  ha.ve 
statutes  similar  to  c\xc  own.     !Eiis  rule  was  recognized  and  applied  to 

■  the-  statutes  of  feis   state   in  the  ca<.e  of  Abbott  v.  V.'cthorby,   6  Tash.   507 
(56  Am.  St.  Hep.   1?6).     Under  it,    if  th6  w.rfe  had  done  what  she  did,  vdth- 
out  any  agreement  between  herself  and  her  hns'rand  as  to  vho  thould  have 
the  benefit   of  her  soi'vices,    the  money  received  therefor  would  have  been 
that  of  the  conmunjty .      It  foj.lown  that  if  the  money  was  hers,    it  was  by 
reason  of  the  fact   that  what  was  yaid  and  done  by  the  husband  amounted 
to  a  gift  to  her  of  che  money  received.      It   is  not  claimed  that  this 
wDUld  not  have  been  si^fxicient  for  the  purpc;?e,   if    the  property  had  been 
in  Qisistence,  and  had  been  at  the    time  delivered  to,  and  ninne  retained 
by,    the  vafe.     But  tie  contention  is,    that  at  the  time  the  arrangement 
was  entered  into,   that  which  v/as  atteiopted  to  be  donated  was  not  in  ex- 
istence and  could  not  be  delivered,  and    tiat  for  that  reason  the  attempt- 
ed gift  could  have  no  effect.      Tne  general  rule   is   that  a  gift,    to  be 
effective  mi;st  be  consummated  by  delivery,  but   it  does  not  follow  that 
under  the  circumstances  disclosed  by  the  evidence   in  this  case,    tTrB  norey 
received  by  the  wife  was  not  legally  donated  by  the  husband.     The  consent 
on  his  part   tl:iat  she  should  render  these  seiTAces  ard  receive  pay  there- 
for as  her  o\m,  was  a  continuing  arrangement,  and  was   in  force  at  the 
time  she  received  the  money,   hence,  when  she  received  each  si^m,   she  re- 
ceived it  as  her  ovm.  by  e:3>rcE5  direction  of  her  husband,   and  the   effect 


^^=*^^^^  —^  ^^^^<:1^ 


.-i^iyi^ ,  -^s;?:^'^^:^^^^ 


'/^--t^.  ^ 


,^^*^:3^   ~    -l^^^^^ 


424. 

was  the  same  as  though  the  money  liad  first  been  in  his  hands,   and  had. 
"beon  then  daliverr.rl  to  'rsir  as  a  gafb.     Bosiden,    if  the  technical,   legal 
title   to  the  moroy  la'^y  "be  seid  not  to  ha.ve  pa-red  to  h^r,  yet  tir.der  the 
circvunfJtances,  when  the  several  articles  wore  purchasijd,  'brought   into 
tie  house  acd   tala^n  po^sessfcu  of  by  her  an  b3r  separate  proper!:y  v/ith 
the  ooncent  of  the  habljaad,  si'.ch  consent  and  talcing  poosession  amour. tod 
to  a  gift  from  the  hnaband  to  the  \vife. 

Prnprtr^-y  anqnivp^^i  ijinder  circuffistances  very  similar  to  thof^e  dis- 
closed by  this  record,  have  been  held  by  the  courts  of  other  states  to 
iglong  to   the  w.xa.      {See  JoYuir.oa  v.  Bur  ford,   39  lerc.   242,   and  Von  Glahn 
vriBrinBaiL~ai'Ca'x.   2C1    (22  ^ac.   597),   and  no  case  ho:ii'.:.ng  to  the  con- 
trary, vhere  the  circuiris'carces  were  at  all  similar,  has  been  brought  to 
our  attention. 

_3hg_effect  of  sunh  an  arrgn ytceKt  between  husbacd  find  v/ifs.  w-.Fin- 
at-tacted-by  r,rpr'l1-rr  i:  who  wor?  ouch  g.t  the— t-iico   tho  piJiP'-'^tg-  v«ar  a'-fQaJred , 
-is_nQtJbere_J2i:eseated.     It   is  no\*'.ere  shov;3i  tliat  any  0.7  tl^a  proper-';:/  \7as 
obtained  after  the'dnbt  vas  incurred,    for  whida  the  ac-'.io'.i  \7<Vo   oi'o;i,^ht. 
Besides,   the  nature  of  the  property  was  such  that  a  creditor  voald  pofc 
be  presumed  to  have  relied  upon  it  as  a  basis   for  credit.     It  wa?=  cn.b- 
Etaatially  all  hou;eh-).:d  fu-rr.imro  or  vrearing  appavol,   and  exempt  from 
execution  or  attaclimeat   to  a  hcuseholder  living  in  the  stato- 

!rhe  notion  of  the  appellants  for  a  peremptory  instruTtion  to   t:he 
jury  to  find  in  thsir  fa^or  war,  rightfully  deaied,  and  th-i  prcofc  v.-ore 
sufficient  to  support  the  verdict  of  the  jury  to  the  effect  i'r)C'c  the 
goods  were  the  separate  property  of  the  v/ife. 

■Ihe   judgment  will  be  affirmed.  \ — ov-    v*\  , 

Anders,  Scott,  Dunbar  aiad  Gordon,  J^.,  concur. 


425. 


BP.IDCET  EIIERLOCK;,  Appellant,   v.  BEnn/J^) 
DEIIRY,  Recpondent. 

(28  Wash.   170.     1902.) 

Appeal  from  Superior  Court,   King:  County. — Hon.  E.  D.  Benson, 
Judge.     Modified. 

Ihe  opinion  of  the  court  was  delivered  "by 

Vihite,   J. — The  complaint  alleges,   as  a  first  cause  of  action,    that 
on  or  a"bout  Ilarch  1,   1900,  plaintiff  loaned  defendant  OSOO,   and  that 
only  0370  of  the  eimount  has  Tseou  repaid;  as  a  second  canse  of  action, 
that  betvreen  April  11,   1899,  and  June   11,    1900,  plaintiff  performed  v.orlc 
for  defendant  at  his  request  of  the  reaconatle  value  of  lj)25  per  month, 
none   of  which  has  teen  paid.     Ihe  answer  denies  all  the  allegations  of 
the  complaint  and  sets  up  as  affirmative  defenses:      (1)     1!hat  the  defend- 
ant paid  plaintiff  all  the  money  ever  loaned  him  "by  her;    (2)   that  plain- 
tiff is  a  married  woman,    that  none   of  the  matters  alle£ed  related  to  her 
separate  property,   and  that  her  hus"band  \/as  a  necessary  party  plaintiff; 
(3)   that  an  accounting  and  settlement  had  heen  had  "betv/een  T7.   J.  Sher- 
loclc,  husband  of  plaintiff,    and  the  defendant,   of  all  ratters  in  dispute. 
A  trial  v»as  had,  and,   after  the  appellant  rested,  a  motion  vnc  made  for 
a  nonsuit.     Ihe   court  directed  that  a  nonsv.it  he  entered,  and  gave  judg- 
ment for  defendant.     The  granting  of  the  nonsuit  is   the   error  complained 
of. 

As  to   the  first  cause  of   action,   appellant,    on  her  direct  examina- 
tion,   testified  that  in  March,   1900,    she   loaned  recpondent  O^OO;    that 
tlTO  money  was  her   separate  property;    that  the  respondent  had  repaid,   of 
this  Eum,0350  cash,  and  0^0  borrowed  by  her  from  him.     On  cross  exemina- 
.tion  she   testified  that  she  v.as  married  about  eleven  years  ago;   that  she 
aiii  lier  husband  removed  to  this  state  a  year  later;   that  she  had  ^1,000 
of  her  own  nhen  she  was  married;   thc't  she  brought  that  in  her  ovm  pocitet 
to  the  state,  vath  vl»000  of  her  husband's  money;   that  her  husband  took 
the  money  on  their  arrival  here,  and  either  deposited  it  or  used  it;   that 
he  paid  bad:  v200  of  it  son©  three  yeeirs  later,  and  the  remainder,  0^00, 
about  January,   1899,  vhen  he  sold  a  saloon  in  Seattle;   that  shortly 
thereafter  respondent  applied  to  h^er  for  a  loan,   and  she   told  hSin"he  could 
have  th£.t  OSOO  of  mine."     bhB  did  not  tell  respondent   that  her  husband 
had  given  her  that  money  to  keep   for  the  husband.     On  redirect  examination 
plaintiff  testified  that  viten  her  husband  sold  the  saloon  he  gave  her 
■Cl»200  of  the  proceeds,  and  told  her  "to  Iceep  out  of  that  her  ovm  money;" 
that  hj9   owed  h£r  at  that  time  08OO;    that  respondent  came   to  her  and  said, 
'llrs.  Sherlocic,  have  you  got  any  money?''  that  she  replied,   "l  v/ill  give 
you  0500;''  that  h^  said  that  \x)uld  be  eiiou^:;;  that  he  v;anted  the  money  to 
put  up  a  bond;    that  she  afterv/ards  asked  respondent  for  the  money-   that 
he  Said  he  v.-ould  pay  it  back  as  soon  as  he  mthdrew  the  bond.     Respondent 
said  at  that  tine   that  he  v.^ould  give  her  her  money  as  soon  as  he  could 
\7ithdraw  his  bond,  and  h.6r  husband  then  said  to  him,   "You  can  give  her 
her  money  before  you  give  m©  a  cent."     The  recpondent  replied,   "She   ie 
all  the  tine  J-iwing  about  it."     That  respondent  first  gave  her  husband 


an  ardor  on  one  llarin©  for  0250,   and  that  she  went  and  ctoir^ed  it,   and 
defendant  said,  ho  -./ould  jivo   it   to  her  hirncolf ,  ?nd  did  then  pay  her 
vi350  in  cash.     She  fxirther  tectificd  t^-s.t  the  0^^*^  i^  cash  \;as  paid   to 
her  huntqnd,   and  Tjy  lior  hnstatd  given  to  her.     Ste  further  testified 
that  the  htisband  tool-  all  of   the  ^2,000  that  they  had  -when  they  cace  to 
this  ctate,  ^cpoisited  it   in  his   ovm.  nane,   and  U5ed  it  in  "buyiAi;  and  sell- 
ins;  rsal  ectato  Zl£.  tuyin^^  other  proi^erty;   that  the  0^00  -.ra-c  paid  liac!; 
to  her  at  Hentou  a'oov.t   ocvon  years  aso;    that  lie  never  paid  her  any  nore 
until  Januai-y,   1900,  -.hen  :j3   cold  his  saloon.     Tho   testimony  also  sho'./ed 
tliat  f  01'  several  years  her  husliaJid  and  respondent  v;ere  partners  in  the 
mil!:  business,   aiic'.   tlia.t  l^ei-  husband  l-uad  liousht  the   interest  in  the   saloon 
in  Seattle   and  paid   therefor  OQoO  "bir  a  cheC:  -k/hich  he  got  from  tlx  re- 
spondent ou  funds  -.hich  ho  an<?.   the  respondent  had.  in  the  milk  business . 
She   testified  also    iu  her  direct  erianinati on  Giat  she    told  the  respondent 
to  pay  to  her  hus"'?and  the  0500.     Tsb jTQ  is  no  proof    that  this  v/as  ever  done. 
There  is   testimony  shov/ing  tliat  O2,o50  -jas  paid  by  tlie   respondent  to  the 
husband   of  the  appellcnt  for   the    interest  of  the  huGbard-  in  certain  nii:: 
business,   and   tliat  a  bill  of  sale  vac  aad.e  by  the  husband  for  that  biiSi- 
noss;   that  in  that  bill  of  sale  v/as  included  a  release  for  vrarlc,  wages, 
and",  money  loaned;   tl;iat  at  the    tinre  the  bill  of   sale  '..-as  signed  by  the  hus- 
band $130  was  left  in  the  ]::ands  of  respondent's  attorney,   to  be  paid  to 
appellant   if  she  could  si^-n  the  bill  of  sale.      Ihis   the  appellant  refused 
to  do.     We  do  not  thin':  that   Ciis  evidence  shaw's  the  payment  to  tte  hus- 
band of  the  money  borrov.od.     At  least,    it  v/as  for  the  jury  to  say  whether 
any  part  of  the  (^2,G50  v/as  a  part  of  the  balance  due   on  the  ^500  loan, 
and  -..hether  it  had  all  been  paid   to  the  husband.     VTe  thinl:  the  evidence 
establishes  prima  facie  that  the  monsj'-  loaned  to   the  defendant  v/as  her 
separate  property,   and  that  onljr  ^370  of  it  has  been  repaid.     Respondent 
contends  that  the  motion  for  the  nonsuit  vs.s  made  and  sustained  on  tlie 
ground  that  the  testimony  established  the  fact  th-at  the  money  loaned  v/as 
coramtuiitj'-  property.     In  effect,  he  says  the  $"1,000  viiich  E?ae  loaned  her 
husband  eleven  3fears  before  the   trial  was  mingled  v/ith  the  comjiiunity 
funds;   that  the  0*2,000  brought   to    this  state,  §1,000  of  v/hich  she  claimed, 
and  $1,000  of  v/hich  belonged   to  her  husband,  had  become  comniunity  prop- 
erty, because  it  v;as  used  by  the  husband  in  various  v/ays   in  carrying  on 
the  community.      Eiis  did  not  do  away  vath  the  moral  obligation  the  hus- 
band was  under  to  repay  the  money  loaned  to  him.     Y^en  he  gave  to  her  the 
§1,200,  and  directed  her  "to  Tceep  her  own  money  out   of  it,"  it  amounted 
to  a  relinguishment   to  her  of  his   interest  in  the  ^1,200  to  the   extent 
of  his   indebtedness   to  her.     Then  she  loaned  $500  of    this  sum  to  the  re- 
spondent as  iier  o'.rn  money,   and   the  huribaud,  v.lth  the  laiovrledge  thereof, 
accxuiesced  in  the  loan  as  cade,    it  certai:ily  amounted  to  a  segregation 
of  the  amount  loaned  from  the  (51,200.     Siis  testimony  v;ould  jixstiiy   the 
coiu't  or   jury   in  holding,    independent  of  the  debt  due   from  the  husband 
to  the  wife,   that  the  husband,  by  permitting  ?5r  to  loan  it   in  the  manner 
Eiie  did,    intended  to  maize   to  lier  a  Sift  of  the  0500.     Ue  therefore  thrhk: 
that  the   court  erred  in  sustaining  a  nonsuit   to  the  first  cause  of  action. 

As  to  the   second  cause  of  action,  appellant   testified  that  she  and 
her  husband  had  an  agreeaxsnt   that  \*.en   she  v/orl:ed  v^atever  she  earned  was 
to   be  bar  separate  property,  and  t?iat  the  agresraent  was  alcays  observed 
between  tiem;   that   this  affreera3nt  v/as  made  seven  years  ago,   and  that  the 
defendant  loiev/  of  it.     She  agreement  vSiS  that   ''vhatever  I  v/ould  earn  v,tis 
my  own  money  acd   I  could  use   it  and  do  whatever  I  pleased  v.lth  it.     I  v/as 


-2^t^^-^.-e^'' 


427. 

vrarlcinij  "by  Xhe  month  then,"     This  agreement  v/as  general  in  its   terms, 
aEd  had  no  reference  to   the  work  all(?ged  to  have  "been  done  ty  the  appel- 
lant for  the  respcudent.     In  the  ca^e   of  Ya3:e  v.  Pu^h,   13  Uar.h.   78    (42 
Pac.  528,   52  Am.  St.  P^p.  17),   it  appeared  that,  "before  the  v/ife  consent- 
ed to  enc;ast3   in  the  particular  J-uciness   in  which  the  money  was  earned, 
her  hiiElDand  agreed,    iu  consideration  of  tsir  enterins  into   the  'busiuier.s, 
she  should  have  wl'iatever  mona;/  she  earned.     We  held   in  that  case  that 
the  earnings  were  her  separate  estate.     C2  think  that  case  can  Tie  din- 
tinguisli£d  from  the  present  one.     Here  tha   a^eement  v;as  general  in  its 
terms,   and  had  no  reference  to  any  poriicnlar  huBiness  or  employment. 
Hie  statute  as  intei'preced  "by  us   in  Aobct  c  v.  V/etherhy,   5  T7ash.   507   (33 
Pac.  1070,   36  Im.  St.  Hop.   176),   provides  that  the  earnings  of  the  wife 
Then  living  vdth  her  hustand  shall  'be  corrravuDity  property.      It     is  trte 
that  the  hustand  may  give  to  the  wife  his   interest  in  any  portion  of  the 
community  property.     Had  the  hucTjand  in  the  present  case  said  tliat  vJiat- 
ever  the  wife  earned  in  v.erking  for  the  defendant  shcuTd  to  h^r  separate 
property,   \70  have  no  doutt   tliat,  u;:a,der  th3  rule  laaS.  dowoi  hy  us   in  Yalce 
v.  Pugh,   supra,   she  could  hold   the   r.ane,  v/hetb.er  earied  at  tlie   time   or 
not.     But  %7e  do  not  thi?ll:  the  rule  should  te  extended  further.     A^  the 
agreement   in  this  case  v/as  general,  ard  had  ?i0  reference  to  any  particu- 
lar v«)rk,  vre  hold  that   it  vvsc  not  sufficient  tt  impress  upon  the  earrings 
of  the  wife  sued  for  in  this  action  the  character  of  separate  property. 
An  agreetrent  corj.troveaiug  the  gencraJ.  policy  of  the  state  should  not  "be 
vague  and  inferential,   as   is   the  general  agreement  testified  to  hy  the 
"Wife   in  this  case.     Tab  statute  provides  that  the  hunband  shall  have  the 
management  and  control  of  ti:£  community  personal  property;  axd  it  fol- 
lows from  the  construction  Jjut  "by  us   on  Sec.  4493  and  4494,  Bal.  Code,   in 
Athott  V.  Uetherhy;    supra,    that  the  wife  cannot  maintain  the  secoiai  cause 
of  action  in  her  ovm  nana,  hecouse  l:er  personal  earniags  no  longer  belong 
to  her  in  her  ovm.  right. 

The   judgment  of  the  court  iu  grantihg  a  nonsuit  to  the  secord  cause 
is  sustained.     The   judgrent  of  tte  couft  is  reversed  as  to  the   first 
cause,  v.'ith  ins tr'wct ions   to  set  aside  the  nonsuit   to  the   came,  and  this 
case  is  rerjanded  for  further  proceeding!.-,  iu  accord  with  this  opinion;    the 
appellant  to  recover  her  cocts  on  tliis   appeal. 

^  ^  ^    K^  ^_>> 

Roavis,  C.  J.,  and  Madley,  Mount,  Fullerton  and  Anders,  JJ.,  concur. 


428. 


EVA  EI7IIJ5   PCiBTTE,  T'.Cr?]? oafisat  v.  DW.TJ^  UCRTOE 

[GZ  -vV'aEd.  -1:2 3.     XQll.  ) 

J^>,ppeal  from  a  Judfjcrx^at    of  tho   f.pfrrior  corrt  far  Kiag  cous'^,   Cil- 
liam,   0'.,  enterel  April  5C,   j.9't0,  lyprr.  -fi- -n.-ii-n^y!   in  -Fgxrnr   nf  thp.  p;is.v.i-» 
tiff,   after  a  orlal  on   fce  merit,3  y.?fOx-e  the   courl;  v;icliout  a  .1ury.   iri. 

Par3!Er,  J. — By  this  action  plaintiff  ceste   to  hove  her  title  to  real 
pi-operty  quieted  as  agaiJjSt  a  olaJ.ir  o:?.   IJeti  tljrf5-;'eo:i,  ni.?.i8  l*y  the  de/.'^-x'.- 
ant  undor  a  jL-'d.o-Tjen.t  reuciered  :L3  its  f?.Tor  la  the   sirperior  court  for  IL'.n^ 
covaity  agsi.'i.fit  her  husha'id  vpo.ri  a  cjnmtTmi':y  del):.     1T3  question  prcef.e.nted 
jE  whether  or  x;.ot  the  prcp^^rty  iiivclved  r^as  her  seppjate  property,  a.o.d  as 
EUGli.  free  froa  the   lien  of  ihtlc.  jrd^-i'.eu'; ,     5tie  dofeji.dnrjt  has  appesJ.ed 
from  a  deoreo  adjj-j.igj .tng  the  p-'operrty  .to  he  plaintiff's  separate  property 
and  therefore  not   suh^eot  to  the   li'iMi  of  the   Ju-jgincnt.. 

In  the  year  "095,  roEponie-at  entered  5,r.to  a  contract  for  the  p-urchasc 
of  a  lot   in  Abcrdjc-c,  paying  a  portion  of   IhJ  p-ochane  price  in  cash.     She 
had  been  engaged  in  teach ijif  5033  yaors  prex'iou^   to  that  time  and  had  ac- 
ctaaulated  about  $1,000.      lu  June,    19C&,   rjhe  was  marri'Jd  to  'D.  1,  Pohbinn, 
and  they  liave  ever  since  heen  h"apl:.aad  and  '.7ife.     A  few  months  after   their 
marriage   she  made  fit*ai  payme-.o.':  upon  tne  lot  and  proc  Tired  a  deed  the^-efcr 
in  compliance  vath  here  contract.     About  this  time   she  horrcwcd  some  money,, 
securing  it  hy  a  mortgage  upon  the   lot.     Thi^  mortgage  and  the  note  ac- 
companying it  v.Bre  e::ecuted  by  both  herself  atd  hus'band.     The  money  so 
borrov.'ed  by  her  s'nc  errpended  in   che  c  onrtt-nc  fcioa  of  a  dwelling  upon  the 
lot,    aad  probably  paid  a  small  balance   thei'efrom  upon  the  purchase  price 
of  the  lot.     Tnis  debt  was  thereat  cei-  paid  by  her  in  month-'y  payments 
from  money  earned  by  her   in  teaching',  covering  a  period  of  some  four  years 
follo\;iug  her  marriage.     There  -.vas  p::a'- tic  ally  nothing  furnished  by  the 
hur,band  in  eitiier  monej'-  or  propei-cy  towa;rd3  the  purchase  of  the   lot  or   the 
maJcing  of  the   impro\'emontE  thereon.     He  did  furnisn  a  very  snail  quantity 
of  lumber,  but  we  regard  Giat  of  no  consequence  in  detert^ining  the  ques- 
tion of  his  community  interest  in  the  property-      In  January,   1906,   she 
sold   this  property,   receiving  therefor  01.783.35,   after  paying  errnenses 
incident  to  the  sale-     A  short  tiirB  before  she  received  the- money  upon 
this  sale  she  moved  to  Seattle  and  entered  into  a  contract  for  the  pur- 
chase of  a  house  and  lot,   v^iich  for  ccsivenience  we  will  call  the  16th 
avenue  place.     She  was  to  pay  tlierefcr  02,700  and  assume  a  §3,000  mort- 
gage already  on  the  properly.     Eie  hucbaxid  had  nothing  whatever  to  do  v/ith 
this  deal. 

\t'hen  she  i-eceived  the  proceeds  of  the  Aberdeen  property  she  completed 
the  purchase  of  the  18th  avcjue  pllace  by  payirog  all  of  the  v2,700  in  cash, 
save  about  $150  for  v,hich  she  ga.'e  her  personal  note.  The  money  then  paid 
by  her,  in  addition  to  the  proceeds  of  the  Aberdeen  property,  ^vas  from 
her  personal  earnings  acquired  either  before  or  after  n..'~riage,  v.hioh  had 
loaned  by  her  in  the  riearitime.  She  Lhen  received  a  deed  for  the  IBth  ave- 
nue place  subject  to   tlie  0^.000  mortgage.     Thereafter  siie   sold  the  IBth 


429. 

avoBue  place,  whicih  sale  netted  her  alDOut  C^5,000,   the  purchaser  asstanins 
the  mortgaso  thr-rcon.      Thereafter  sIb   purclia^ed  the  property  here  involv- 
ed, paying  therefor  Ol,7o6  in  crxh  and  arsf.umin.'?  a  ^3,000  marigs-^o   thereon. 
Thic  mortgage  is  scill  UcT^aid.     Her  hustani  had  nothing  v/hatever  to  do 
with  this  deal.     Tlie  e^id^nce  canvj.zuoes  us  that  the  hushand  has  never  made 
any  material  coutri'buoil.or.s   towards  the  ao.;mRitiou  of  aiay  of  these  F*-op- 
erties,  and  that  all  of   tiaem  were  acquired  Tjy  respondeat  as  the  prcdT;j?3t 
of  her  personal  eai'jairigs .     Piespondent  clairas  that   there  v.-as  an  acn^eenent 
between  herself  a:':d  Ijucibtind  er.isting  at  all  tiires  since  their  nxirriage, 
to  fhB  effect  that    the  personal  earr±rj^:'  slr)uii  be  hor  separate  property. 
She  testified  relative  to   this  xmderctanding  as  follov/s: 

'"Q.     Have  you  t3:;::rod  v/ith  your  h".'.3't:and  sorce thing  about   this  being  your 
separate  fu.nrts,   this  ison.^y  -that  you  received  fi'om  teachir'g?    A.  Yes,  sir. 
Q.     Yto-t  has  been  sajd  by  him  5i'.  reJ^.L'.ou  to   taat,   that  particular  matter, 
of  v/hether  those  fimds  should  he  your  separate  funds,  or  otherwise?    A. 
There  has  never  been  an:/  dirjagi-ceicent  about  it,      rj  liss  always  been  con- 
ceded by  LIr.  Do'-.bir'S  that  it   ij  mv  property:    aj^d  my  nciey   is  ny  o\m  to  do 
what  I  cho'3o  with   it.     Q.     That  this  monay  that  you  got  from  teaching  is 
youi-  separate  futds?    A.     Yes,   Fir.      .      .      o  Q..     How,  as  a  matter  of  fact, 
there  has  n3ver  been  ai^y  foimal  discussio-a  betweeu  you  as  to  \7ho  should 
control  any  rconr;yE  or  aay  properties?    A.     Yes,   sir,  certainly.     'Ce  have 
jxver  had  any  writtea  concrant;  but  certainl'y  I  ccatrol  my  own  money.     He 

has  never Q.     He  has  never  asl:ed  for  leave,  to  control  it,   has  he? 

A.  ITever.  Q.  it  has  jast  gone  alorig  as  a  laattet  of  course,  that  you  re- 
ceived the  inco;re?  A.  He  has  frequently  said  tliat  it  was  mine  to  do  v/liat 
I  pleased  vath   it .  " 

It  would  hardly  be  correct  to  say  that   the  personal  earnings  of  re- 
spondent \^re  accuuaulated  \?hile  si's  "was  living  separate  from  her  husband, 
so  as  to  render  them  separate  property  uiidor  Rem.  c:  Bal.   Code,  Sec   5920; 
though  for  the  purpose  of  tln'owing  light  on  tae  urderstanding  of  the  par- 
ties as  to   each  earnings  being  her  separate  property,   it  is  worthy  of  note 
that   the   eviderce  shows  tliat  they  './ere  separated  dur  i'ag  a  large  part   of 
tlae   time  she  \;as  earning  the  monej'  ac^  a   teacher,  after  mai-riage,  which  was 
applied  in  pajnTient   of  the  mortgage  upon  the  Aberdeen  property.      Biis  sep- 
aration \/as  not  because  of  disagreement  between  then,  but  evidently  for 
busiccss  reasons-     Bui'ing  this    separation  als  contim^ed  to  live   on  the 
Aberdeen  prop^rt^s  while  he  v.as  absent  at  Seattle  and  employed  there.    At 
all  tirasE  since  the  zoarriage  ste  has  managed  her  business  affSiirs,  so  far 
as  her  separate  earnings  aif.  the  acquisition  of  these  properties  is  con- 
cerned, as  if  she  v.'as  an  unmarried,  wormian,  all  -/ithout  any  control  whatever 
"by  her  husb^d. 

It  seems    to  us    that   Ihese  facts  are  sufficient  to  shov;  such  an  agree- 
ment between  respondent  aif.  her  husband  as  resulted  in  all   of  her  personal 
earnings  after  marriage  becoming  her  separate  property.     It   is  true  if  we 
lool:  in  tMs  evidence  for  some  stch  spacific   agreement  at  sorrs  specific 
time,  wo  may  not  be  able   to   find  it  in  clear  and  fo:mial  language;   but  talc- 
ing her  testimony  as    te>  the  general  understanding  b6t\,-een  herself  and  hus- 
band,   in  contradiction  of  v.'hich  there   is  not  a  syllable   of   evidence,   and 
the  fact  of  tl^  management    of  her  earnings  aB3.   tho  property  acquired  there- 
by v/itliout  the  slightest  control   of   a-   interference  by  her  husband,  v;e  can- 
not escape  the  conclusion  that  it  v.'as  at  all  times  since  their  marriage 


.-y-^^y^- 


430. 

well  tffiderstood  t)y  "both  of  ttem  tint  Mr  earuiugis  v/ere  to  be  }r>r  ?^Tiarate 
property,     Yate  \  .  P-ugh,   13  ^a.-li.    73,  42  Pac.    £>23,   52  Am.  St.    17;    Correct 
V.  Eloan,    52  Wanh.   1,    99  Pac.  1025.      Thic  "belns;  true,    of  coarse  the  prop- 
erty acquired  through  hHT   bcparace  ef.riiings  als  c  beoa-OB  ter  separate  prop- 
erty.    This  is  not  a  ca^e   of  seDkixif;  to  e -s  vaalifll.  an  r^^.i-eea^nt  be  two  en  a. 
husband  aid.  \sife  at  to  f^.e  Eta:u3  of  r^al  propR-.'^y.     S'lich  an  agTCo-j'^zit, 
of  coicse,  could  not  bt;  f;staDlis}-£d  loy  oral  evidence.     Graves  r.  G-rat/es, 
48  ¥ash.   664,   94  Pao.  401.     Tlif.s  real  proper.'y  did  not  becorce   separate 
property  because  of  ar.y  a'crreGrDDat  aa   to  i  I;.-  statiis,  Vat  because  it  is  the 
prcdtct   cf  tho  wife's  cepai-ata  earnirgs  v>iiiCii  had  become  her  separate 
property  by  agi-'eetueac  TOth  her  hucbafd. 

It  is  contended  that   tlae  cxccui-.ion  of  the  note  ard  reortgase  upon  the 
Aberdeen     proprir^y  by  bcth  the  hnsbaxJ.  a'^j.d  wife,  and   the  uce  of  the  pro- 
ceeds of   that  loan  to  pay  a  balrj-ce  c'.vc  upcn  the  porchase  price  of    feiat 
property  and  to   .inprcp-e  the  same  by  'buiriirg  £■,  dvralling  thereon,  ren.lered 
it  coirmimi<-y  propbi'-Jry.     Tlie   case  of  Heinti:  v.  Erov/n,  46  yasja.   307,   90  Bac, 
2^.1,   123  Am.  St.    &37,  may  seem  to  lead  support  to  thic  view.     "We  thinlc, 
hov.Qver,    th.it  nacp.   i,'3  di  s'ijngu.ishaljle  frcm  chis.      In  that  case  the  con- 
tract for  the  pv:rchc.r.e  of  the  lard  vras  tnac'.e  af  cer  marriage,  v/hilc   in  this 
case   it  vras  cna/ie  bai'orre  marris^e.     In  that  case  the  contract  was  made 
presumably  in   uie  i.ntereiits  of  the  corarr-mity,  '.vhile  the  contract   in  this 
case,   of   cora-se,   was  not  so  made,  because  thera  v.as   t]ien  on  community. 
In  that  case  we  are  to  presume  that  the  commujiity  paid  the  loan  which  pro- 
duced the  money  to  pay  for  the   land,   ard  hence,   the  community  did  actually 
contribute  to  the  purchs-se  price;  vAiile   in  this  case  the  community  did  not 
60  dontribute,  but  tie  whole  of  the   loan  v.as  actually  pafd  from  the  sepa- 
rate funds  of  the  wife.      In  th&t  case  the  coamuiiity  actually  assisted  in 
carrying  ont  a  contract  for  the  purchase  of   land  entered  into  after  mar- 
riage, while   in  this   case   the  husbfind   only  Joined   in  the  execution  of  a 
note  ai2i  mortgage,   thereby  assistin;^  in   ihe  carrying  o\it  of  th?  contract 
for  the  purchase  of  the  Aberdeen  property,  \liich  contract  had  been  mcde 
before  marriage,   and  to  the  payment   of  which  loan  neither  the  husband  nor 
the  community  ever  c  gniribated  anything,     '^e  thinlc  it  can  be  said  in  this 
case  that  the  v;ixe's   separate  funds  actmily  produced  all  of  these  prop- 
erties,  notrnthstandiiig  there  may  possibly  be  a  technical  senser  in  which 
it  could  be  said  the  loaa,  evidenced  by  the  note  and  mortgage  e::ecuted  by 
both  husband  anL  wife,  contributed  to   the  acquisition  of   the  Aberdeen 
property.     T;e  treat    the  question  as  though  no  ri^Jits  \7ere  iere  involved 
except  those  cf  ths  husba^id  ard  v/ife,   so  far  as  that  property   is  concerned, 
since  appellant's  rights  did  not  arise  until  years  afterwards.     TTe  are  of 
the   opinion  that  the  husband  acquired  no  interest  in  that  property. 

It  may  be  said  that  the  assumption  by  respondent  of  the  mortgage  on 
the  18th  avenue  place,   and   the  assumption  of  the  mortgage  upon  the  property 
here  involved,  had  the  effect  of  creating  a  corcmunity  obligation  in  the 
acquisition  of  those  properties.     ¥e  thinlc  such  is  not  the  case,    in  viev/ 
of  the  evidence  showing  that   those   transactions  \\er6  consummated  as  a  part 
of  the  management  of  her  separate  property.     Uhited  States  Fid.  &  Guar,   Co. 
V.  Lee,   56  ¥ash.  16,   107  Pac.  670. 

We  coDClude  that  the  decree  should  be  affirmed.     It  is  so  ordered. 


Dunbar,   C.   J.,  Iloxmt,   and  I'.orris,  JJ.,  concur. 


431. 


imiCfT  SECURITIES  CCtPAUT,  Re-Tpcndeit,  v.  R. 
P.  CHITtI  et  alo.  Appellants. 

{93  ¥a3h.   115.      1916.  ) 

Cross-appeals  from  a  jiadgm^nt   of  the  nupprior  court  for  Adcmo  cotmty, 

Linny    J.,    cnbered  Hay  8,    191R,     in   -r^r-n     nF    tV,P.  vjln-iniif  •r^_rri_nT|^aCt-i  on 

for  equitable  relief,    tried  to  the  court .     Modified  on  plaintiff^' s  appeal. 


Ellis,   J. — ^Action  to  set  aside  as  fradulent  certain  deeds  and  a  mort- 
gage of  real  estate,   and  to  si-'tjecc  ai:.  of  t/ie  propsr'r-y  to  the   lien,  of  a 
judgtaent  held  by  plaintiff  as  ascigiiee  of  the  "banlc  of  Liud. 

Prior   to  1907,  R.  P,   Smith  ari  his   son,  Uarren  Cmith,  v^ith  a  nimter 
of  other  farmers  of  Adams  counly,  ha^  "become  stocldioldors  in  the  Famers 
Warehouse  Compcny  of  lind,:  a  co:aperative  company  org^Xiized  to  facilitate 
the  marketing,'  of  tleir  ijrain.     In  190/,   these  tvro  ?:ad  a  member  of  other 
stocldioiderc  signed  a  hcnd  gtiarpjrSer. I'^o^^;  tli.3   indo^tR'^..iecs  of  the  v/arehouse 
ccmpany  to  the  banJi.     On  July  2-5,   1913,  the  haLr.:  "'iro-'ijaht  snit   on  this 
"bona.     Summons  v.as  served  on  thnt  day,  and  on  Jane   10,    191''-,   it  recovered 
a  joint  and  several   jui?.grreat   in  tho  sum  of  v5,i74.74  against  all  of  the 
signers  of  fiB  "bond. 

On  Au-'ust  7,   1913,  "ITarren  Smith  ard  rife  conveyed  to  his  mother, 
Janette  P.  Smith,  wife  of  R.  P.  Smith,   t>e  north  half  of  section  6,   in 
township  16  north,  range  35,   S,  \v:.  i:>,  -./Men  is  called  in  the  record  the 
"Peasley  land.''    iL'arren  Smith  hcd.  acquired  title   to   this   lai£-   in  the   spring 
of   1912. 

On  the  same  day.  UVarren     Smth  aiid  v/.ife  eizeouted   to   Janette  P.  Smith 
a  mortgage  covering   the  north  half  o!C  section  26,    in  ta..(Ji::hip  17  north, 
range  34,  E,  "W.  II.,  and  the  nov.iieafcb  quarter  of  section  32,    in  township 
17  north,  range  35,   S.TVMI.,  purpovt.lii;'  to  secare  a  dctt  of  (^15,000.     Tliis 
land  is  laaovm  £ls  the  "Warren  Suvlth  land."     The  deed  \7as  filed  for  record 
on  June  6,   1914,    the  mortgage  on  June  9,   19:. 4.     One  purpose  of  this  suit 
was   to  declare  this  deed  cucl  mortgage  fradulert  as  to  the  plaintiff's 
jtdgmsnt  and  to  cuhjoct  tho  lard  as  belonging  to  Uiarren  Smith  to  the   judg- 
ment against  him, 

Alout  -lugust  7,   1913,  T/.arren  Smith  and  \7ife  also  e::ecuted  to  Janette 
P.  Smith  a  chattel  mortgage  on  all  of  tfce  h-   stoclc,    teams  and  f  arising  im- 
plements, purporting  to  secure  a  deljt  of  0^,000.     aiis  was  satisfied  ty  e 
1)111  of  sale  of   this  property  from  "Warren  Smith  and  v.-ife  to  Janette  P. 
Smith,  e::ecut.cd  Oune  8,   1914.   and  recorded  June   9,    1914.     This   transaction 
is  not  asEai'ied. 

In  1907,  R.  P.  Smith  ani  \7arren  Smith  negotiated  the  purchase  of  the 
northeast  miai-ter  of  oooSion  4,    in  tov-Tiship  16  north,   nange  35,  3.  T.  II., 
and  the  sor.t'ieast  qi;.-xTter  of  section  32,    in  township  17  north,  range  55, 
E.  ^L.  n. ,   Imov.n  as  the  ^'Gartwright  land."     Title  v/as  talEn   in  the  name   of 
Janette  P.  Smith.      TkB  consideration  paid  v.'as  ahout  012,000,     Ihc  raoney 
was  raised,  08.00C)  at  a  "ban'.:  on  joint  notes   of  '.7arren  Smith  and  mfe. 


Janette  P.  Smith  oM  R.  P.  Snith,  Cl»750  ty  a  nortgase  givon  by  '.Varren 
Smith  and  wife  oa  their  hone  stead,  and  01.75O  oy  a  mortgage  given  "by  R. 
P.  Smith  ard  Janette  P.  Smith  on  their  homeBtead.     All  of  these  obliga- 
tiODE  v;ere  paid  in  1908.     Plaintiff  seeks  to  ^v©   this   tract  declared 
oomntmity  property  of  R.  P.  and  Janette  P.  Smith  acd  subjected  to  the  lier 
of  its  judgn6ut. 

In  189";*  ard  prior  thereto,  Janette  P.  Smith  acquired  title  to  a  half 
section  of  land  laiown  as  the   "Railrcad  land,"  ard  anotlaer  tract  of  four 
hundred  acres,  Icnovai  as  the   "Boyles  land."    Plaintiff  sou^t  to  subject 
these,  as  community  property  of  R.  P.  aad  Janette  Smith,   to  the  lien  of 
its  judgment .     But  the  only  evidence  on  the  subject  shows,  and   it  nov/ 
seeniB   to  be  conceded,   that  these   t\70   tracts,   thoxzgh  acquired  after  her 
marriage  \/ith  R.  P.  Smith  sone  forty  years  ago,  were  paid  for  with  money 
she   inherited  froin  her  father  before  her  marriage  and  are,   therefore,  Jan- 
ette P.  Smith's  separate  property. 

The   court  adjudged:      (1)   that  plaintiff's  judgaent  as  against  R.  P. 
Smith  is  a  lien  on  the  comatinity  property  of  R.  P.  and  Janette  Smith;    (E) 
that  an  undivided  ono-half  of  the   "Cartwright   laud"  is  conaaunity  property 
of  H.  P.  and  Janette  P.  Smith,  and   as   such  subject  to  e:;ecution  to  satisfy 
the  judgjreat;    (3)   that   the  mortgage  covering  the  '"■"Barren  Smith  land"  is  a 
valid  mortgage;    (4)   that  the   "Peasley  land"  is    Qie  separate  property  of 
Janette  P.  Smith  azd   is  not   subject  to   the   lien  of  plaintiff's  judgment. 

Both  parties  Imvin:^  appealed,  ',7e  shall  designate  them  throughout  as 
plaintiff  and  defendants.  Me  shall  consider  each  branch  of  the  judgment 
separately. 

I.     Both  R.  P.  a.-^  Janette  P.  Smith  testified  that,  during  all  of 
their  married  life,   they  have  conducted  their  business  separately;    that, 
at  the  time  of  tie  marriage,  slie  Y&d.  a  considerable  aaount  of  property 
inherited  from  her  father;   that,  at  or  about  that  time,   it  v/as  agreed  be- 
tween them  that  'v^iatever  She  acquired  ^ould  be  l-jers  and  upon  her  death 
should  go   to  her  children,  exd   that  \*.atever  he  acquired  and  his  personal 
earnings  should  be  his   and  upon  his  death  rhould  go   to  his   tv/o  children 
by  a  former  marriage.     Three  disinterested  witnesses  who  had  Icncr.m  the 
Smiths  for  rnauy  years  and  had  transacted  "business  v.'ith  both  of  them  testi- 
fied that  tl:£y  ?^d  always  conducted  their  busiress  separately.     Their 
sons,  TJarren  Smith  and  Hewell  Smith,   the   former  thirty-eight  years  old, 
the   latter  tvrenty-nine,   testified  that  such  Ir^-d  been  the  case  as  long  as 
thej'  could  remember.     Dais  evidence  fairly  establishes  the  agreement  and 
shows  that,    in  the  main,    it  had  been  continuo"usly  acted  upon.     Though  this 
Mas  an  oral  agreement,    it  does  not  appear  that   it  v/as  made  before  the  mar- 
riage.    It  is  not  assailed  as  a  contract  made  upon  consideration  of  mar- 
riage,' hence  void  becai^se  verbal,  as  v/e  held  in  ICoontz  v.  Zoontz,  83  ^.Tash., 
180,    145  Pac.   201.      TTts  statutR   of  frauds    is  neither  plianded  nor  discussed. 
Such^agreeirents,    raade  after  marriage  and  mutuallj'  observed,   ore  valid. 
Sage  V.   Gage,   76  Uash.   252,   138  Pac.   886;  Pobbins  v.  re:cter  H  orton  u  Co., 
62  rash.  423,    113  Pac.   1088;  YaJre  v.  Pugh,   13  Wash.   78,  42  Pac.   528,   52 
Am.  St.   17. 

R.  P.  Smith  testified  that  he  purchased  the  stock  of  the  warehouse 
company,    ten  shares  of  ^0  each  par  value,  v.'ith  money  earned  by  himself, 
that  his  \7ife  v.-as  in  no  manner  concerned  in  the  purchase,  and  that  he 


453. 

Ei^'pod  tlio  1)001  as  a  Etcxjl-diolder-     V.'e  are  cloar    that  his  cii-^nins  the  bond 
did  not  create  a  community  obli'jation.     T/ay  r.  Lyric   Theater  Co.,   79  V/ach. 
275,   K-0  Pac.   520.      Tho    court  erred   in  holdij^g  tte   judgment  a   lien  on  the 
>>picmnnity  property  of  R.  P.   and  Janette  P.  Smith. 

II.  The  giving  of  the  joint  notes   of  the  two  communities  and.  the 
two  mortgages   to  raise  the  original  purchase  price  of  the   Cartwright  land 
strongly  supports   the  vi.ov.-  that  an  unlivided  cne-half   of  this   Irxd  beio^^-- 
ed  to  each  of  the  commuuities  ccnposod  of  Eo  P.  Smith  and  Jsnotte  P.     Smii 
and  ^.'.'arren  Smith  and  wifo.     All  of  th.^sc  partiec,    hov,ever,   testified  that 
the  title  was   talien   in  the  ncme   of  Janette  P.   Smith  ■because  the  land  \,aE 
purchased  for  b3r,   and  that  cho  paid  off  all  of  these  otiligations  from  her 
c\m  funds.     But    it  fairly  appears  that    tlie  money  csmo  partly  from  the  crop. 
growing  upon  the   laad  v.-^:;ii  it  was  purchased,:  parti^y  from  money  in  hank  in 
TJarron  Smith's  name,   and  ahout  ti2,50Q  from  money  iiiherited  from  her  father 
ty  Janetto  P.  Smith.      It  also  appears   that  "Warren  Smith  for  many  years  lied 
rented  his  mother's  lands  for  lialf  the  crops  after  deducting  seed  and  feed, 
and  that  v/hDn  from  time    to   time   these  crops  "^/ere  disijosed  of,   th)  proceeds, 
"both  of  his  pai't  and  hers,  were  deposited  in  the  Tsanlr  to  his  credit. 

Ihere  was  no  e'"-idenoe  thai:  R,   P.  Smith  contributed  anything  tov/ard  discharg- 
ing the  ohligations  created  on  the  purohano   of  this  land.     On  the  v*iole, 
\ie  are  satisfied  that  an  undivided  one-half   of   ttii  s  land  is   the  property 
of  the   community  composed  of  "(Xarren  Smith  aiil  '.Tife,   and  the  other  half   the 
separate  property  of  Janotte  P.  Smith,  and  -.vb  so  hold.     Ihere  can  ho  no 
question  that  plaintiff's  judgiinent  as  against  V/arren  Smith  hinds  the  com- 
nunity  praperty  of  TCTarren  Smith  ard  \;ife.      It   is  therefore  a  lien  on  their 
unc-ivided   one -half  of   this  land. 

III.  For  convenience  in  consecutive  discussion,  v;e  shall  ne:;t  con- 
sider the   "Peasley  land."     This  land  was  pui'chased  for  $12,000  at  an  ad- 
ministrator's sale  in  the  spring   of   1912.     Ue  are  s^isfied  that  it  v/as 
purchased  by  barren  Smith  foi   Janette  P.  Smith;    that,   throu^^i  nistalre, 
the   return   of  sale  v/as  irade   in  Ms  name  aaT.  that  soon  aftcnvards  he  at- 
te;:nptcd  to  l"jave  the  mistaJ-e  corrected,  but  was  told  t>Q,t   Ihe  easiest  way 
to  correct  it  was    to  deed  the   land  to  her,  his  wife  joining.     Both  he  and 
Janette  P.  Smith  so  testified,    as  did   also  txio  attorneys  \.hose  advice  they 
took  at    tie   time.     Ihere   is  no  evidence  to  the  contrary      'T7arren  Smith  had 
becai  farming  Janette  P.  Smith's  lands  during  the  years  1908  to  1911,    in- 
clusiye,  but  had  paid  her  no  rent  since   1907.       Ee  borrov.cd  money  at  a 
banJc  and  paid  for  this  lard.,  giving  his  ov;n  check  for  somethii^g  over  O^.OOC 
of  the  purchase  price  and  tumiyg  over  t\m  certificates   of  deposit  aggre- 
gating about  O1.7OO5  belonging  to  Ms  mother.     So  far  as  can  be  gathered 
from  the   evidence,   the  balance   of  the  purcliase  price,   consisting  of  a 
mortgage  assumed  on  tlie  purchase,  -..as  paid  partly  by  crops  then  grov/ing  on 
the   land  and.  partly  by  T/arren  from  rent  money  owing  by  hin  to  her.     V/hile 
the  evidence   is  much  confused,  ^.e  are  convinced  that  Uarren  paid  at  least 
09,000  of  the  purchase  price   of   tiis  land   in  part  payment   of  his  debt  to 
his  mother.     True,    die  testified  to  the  effect  that  at  about  this   time, 

she  does  not  remember  wLethcr  bof ere  or  after  the  Peasley  purchaso,   she 
received  a  ^jraft  for  ^^10.000  from  a  niece  in  llichigan  -..ho  has  since  died; 
that  she  cashed  this  draft  at  eoedd  bank  in  Spolane,   but  could  not  remember 
v/hat  bank  or  \/here  in  the  citj'  it  \.'as  located;   that  she  ■was  iilonLlfiod  by 
a  "Dtitch'  -.voman  namjd  ''Ella'  or   "Lena,"   sh>:   ic  not  certain  which,  "^.ho  at 
one  ti;:x  -..■orl-xd  for  her;    that  this  .."Oman  na.;  lives  on  ='Eome  avenue"   in 


1 


/I. 


£^l^---^^"^,'-»<-c-*;5i^5-i!*e«-*j<^      j::^ 


v-^ 


^_^     ^i-^^UL.^ 


y*^^^  '    --^^^^^^ 


-^_ 


—     ^;-<!»<---^,-i:i^-iC-i*«^  - 


I 


434. 

Spolcana,  tut  eItd  oarmot  renemlior  v;liere;    t3iat   six-  roceivcd  the  money   in 
"bills,   EiJcnt  £30mo  of  it  ani  bronglit  ^-9,500  hono  vri.  tli  hor  in  her  poctet 
and  3a\-e   it   to  T/arrcn  ^mitla  v/itli  v/hicli  to  pay  for  tho  Pcaslcy  land;    that 
this  money  cho   inherited  from  her  mother  azd  had  been  ov/ius  to  her  frcrn 
her  niece  thirtj~tv;o  cr  thirty- three  years.     But   this   is  all  too  va^e 
and   indefinite  to  carry  conviction.     It  Dfist  "be  remembered  that  all   this 
is  supposed  to  Imvo  happened  loss  than  tfe'ce  years  prior  to  the   tine 
vlacn  slie   testified  and  is   of  snch  nat-ure  as  to  bo  remembered  vath  cer- 
tainty ard  e:>:ac':TiGss,   aud  that  since  th?n.  she  had  a  settlement  ;7ith  V.'ar- 
ren  Sraitli   in  v/hicli  it  mtist  have   been  di-^cnssed.     liai-eover,   every  item  of 
this  testimony  is   of  si:ch  natiire  as   to  bo  easily  cciroborated  and  rend- 
ered certain  in  ma.ny  ria^^s  which  at  ouce  sn^gest   themss'.'.ves.     On  the   other 
harrl,   cortiiin  it  is  that  barren  f^mith  did  not  pay  for  the  Peasley  land 
vdth   this  money,   c-rl  certain  it   is  that  Ms  banlc  accotint  shovrs  no  such 
deposit,    or  any  uun^'arl  deposit  at  or  near  this   time.     Ihough  he   testi- 
fied that  she   -ave  him  cash  from  time    to   time,  he  could  not  remember  -.7hen 
nor  the  amount,  and  "supposed"  he  Icept   some   of   it  arouixL  the  raach  an/?, 
put  some   in  the  banlr.     "fherx  aslEd  if  she  save  hira  0^,500  in  cash  at  any 
time,   he  said:      "I  don't  remember.     Those  things  pass   on  in  the  common 
ways  of  daily  life,   ajid  I  don't  remember."     Clear  and  convincrog-  proof  of 
tJ-iese   things  lay  easily  v.lthin  their  power.     Th3  evidence  adduced  seems 
to  us    too  vague  axid  doubtful  to  furnish  the   basis   for  a  legal  ri^t.     T/e 
find   that  she  oivrcfj  the  Peasley  land  as  her  separate  property,    but   that  at 
least  ^9,000  of   the  purchase  price  v^-as  paid  by  Uarren  Smith  and  should  be 
credited  upon  his  debt  to  her. 

IV.     'The  evidence  as  to  the    settlement  bet-./eai  Janette  P.  and  V/arren 
Smith    as  the   basis   of  the  mortgages   is  also  lamentably  vague  and  indef- 
inite.    Both  of  them   testified,    in  substance,    that  they  discussed  their 
busiuess  matters  and  corcluded  that  he   owed  her,   for  rents  and  borrowed 
money,    over -^20, 000.     V/hen   the  loa33s  were  made  and  what   their  amount, 
neither  could  tell.     Ti/hat  the  amoun';   of  grain  raised  by  higi  on  her  lands 
during  tlie  five  years  for  i:*iich   it  is  claimed  she  liad  received  nothing, 
neither  could  tell.     He  could  not   remcaibe:.'  whether  he  had  been  served 
lith  summons   in  the  Bani:  of  Lind  suit  -..hen  the  mortgages  ",;ere  given  or 
not,  but  tlae  evidence  shajs  that  Ix  had  in  fact  been  served  just  fourteen 
days  before.     She  could  not  remember  -..hether  at  that  tine   she   knew  of 
that  suit,  but   admitted  that  she  Imew  "a  {itoi-m  \7as  brewing."     The   attorney 
in  v;hose  office   the   settlercent  '.vas  made  ajf.  -/ho  witnessed  the  mortgage  and 
the   deed  to  Yer  of  the  Peasley   land,   thougli  he  testified  as  to  other  mat- 
ters, did  not   testify  as  to  this  settlement.      T^/o  things,  however,   are 
reasonably  certain.      Of  this  ^20,000  debt,  $5,000  v.'as  paid  by  tho   bill  of 
sale   of  the   stcch  ans?.   implements  coyered  by  the  chattel  mortgage,  and  the 
v9,500  vhich  Ilrs.   Smith  claims   to  have  given  to  T/arren  Gmit"^  about  the 
time  of  the  Peasley  purclaase  -..'as   included  in  the  015,000  secured  by  the 
real  estate  mortgage.     But  the  proof,    as  './e  have  seen,  was  wholly  insuf- 
ficient  to  show  that  she  ever  turned  over  to  him  this  $9,500. 

Defendants  assert  that  this  mortgege  was  a  valid  preference.      It   is 
settled  lav;  in  this    state  tlaat  a  debtor,    though  insolvent,  may  prefer  one 
or  more  of  Ms  bona  fide  creditors  even   if  it  e^diaust  his  -raiole  property 
to  do  so.     IIcAvoy  v.    Jennings,  41-  T/ash .   79,    87  Pac.   55;   Victor  v.    (Jlover, 
17  rash.  57,  48  Pac .   788,  40  L-   R.  A,   297.     Hers  Imowledge  on  the  prefer- 
red 01  editor's  part  that  his  preference  will  hinder  or  defeat  other  cred- 


y 


/ 


>-"^^ 


y     , 


-.^t:^.^^^. 


435. 

itors  will  not  alone  render  hie  preference  fraudulent*     Kelt  l.ifs»  Co.  v. 
Bonninston.   73  V/ash.  467,   132  Pac.  50.     But  the  preferred  de^bt  must  tie 
real.     It  must  not  be  used  ac  a  colora"b3:&  consideration  to  shield  the 
debtor's  property  from  other  claims,     national  Surety  Co.  v.  Udd,   65  V.'asho 
471,   118  Pac.  547;   Bvanp,  Fraudulent  Conveyances    (4th  ed.)  Sec.   172, 

"The  law  loolcs  with  great  jealousy  \rpon  tho  oanner   of  giving  prefer- 
ences,   and  denounces  ail  departures  from  good  faith,  and  requires  that  tho 
parties  shall  not  secure  any  covert  aLlvantage  to  the  debton  in  prejudice 
of  his  creditors,"     Btimp,  Fraudulent  Conveyarces    (4th  ed.).  Sec.  174, 

Thou^  it   is  psually  held   that  the  property  trajisf erred  must  bear  a 
reasonable  proportion  to  tho  preferred  debt,   BurzC',   Fraudulent  Conveyances, 
Sec.  174,   e::cessive  security  by  mortgage  raises  no  conclusive  presumption 
of  fratd.     It  is   evidence   to  be  considered  -.vith  other  circimstances  in 
determining  fraud.     Grand  .^sland  Banl^iiig  Co,  V.  Costello,  45'"ITeb.  119,  65 
N.  "/.  576.     But  there  is  an  obvious  and  marl:ed  distinction  betv;een  an  e::^ 
cessive  security  anl  aa  e::a^gorated  debt.     Any  Gecuritj?'  for  a  sum  ICQO.ti  to 
be  in  e::cess  of  vhat  is  actually  duo  is  presiinntively  fraudulent.     Ilellogg 
V.   Clyne,   54  Fed,  6S6;  State  e:i  rel.  Redmon  v.  Durant,   53  IIo  ipp.  495, 
This  results  as  a  corollary  from  the  universal  rule   that  the  preferred  detl 
must  "be  real  to  furnish  the  essential  element  of  good  faith. 

There  are  some  authorities  -.hich  hold  that  such  a  mortgago  is  only 
void  as  to  tho  fictitious  part  of  the  ostensible  debt,  but  the  better  rule 
is   the  other  v,-ay.     If  a  creditor  Icnovangly  takes  a  mortgage  for  more  than 
his  duo,   the  fraud  corrupts   tlie  vhole.     Bump,  Fraudulent  Conveyances    (1-th 
ed.)     Sections  485,  486,.  487;  Holt  v.   Creairer,   34  H.   J.  Sq.   161;  Heintze 
V,  Bentley,   34  IT.  J.  Eq.   562;     hi  ting  v.  Jolinson,   llSer^j.  &  Eav.'le  528,   14 
JjnUoc.   653;  Kail,  Hoses  Ci  Roberts,  v.  Eeydon,  41  Ala  242;  Russell  v. 
V.lnne,    57  F.  Y.   591,   97  Am.  Dec.   755.     •r.Tien  plaintiff  showed  by  the  parties 
to  this  mortgage  that   it  must  have  included  this  09,500  and  brought  out 
circumstances  casting  the  gravest  doubt  on  the   e::iEteEce  of  so  much  of  the 
ostensible  debt  secured,  -,/hich  doubt   \^-  unfounded,   in  the  very  nature  of 
the  case,  defendants  easily  could  have  dispelled,   lut  did  not,   they  made 
their  case  as  against  this  mortgage.     V/e  have  no  option  btit  to  hold  it 
void  in  toto  as   to  plaintiff^s  judgr-^nt.     Tl3  'r/arren  Smith  land  is  subject 
to  the  lien  of  that   judgment I 

But  the   triad  court  overlooked  the  fact  that  plaintiff's  assignor  liad 
released    Gio  lien  of  this  judgnent  on  certain  Ir.nds  of  one   Offut,   another 
of  the  judgnent  debtors,    in  consideration  of  an  acl3i0'>;l edged  payment  of 
(  1,250.     Y/e  Can  conceive  of  no  reasoli  ^;hy  this   sum,  hO'v7ever  it  ".vas  paifi, 
should  not  be  credited  on  tho  judgment,   aai  no  reason  has  been  suggested. 

Cause  re;iianded   for  modification  of  the    judgment  in  accordance  hei  e- 
ViTith.     Plaintiff  may  recover   its  costs  on  this  appeal. 

llorris,  C.  J.,  Ilount,  ard  Bausman,   JJ.,   concvu?-.- ^ 


436. 


BPu'.CIZiTT,  J.ppallar.t. 

{57  Easli  -1-60,   1910) 

Appeal  fro  112  a  jx<-;rT>.e:Tt.  of  t3ae  sui>e.i'3  0r  cxotrt  fifir  Enohoms'h  couaty, 
SteiEcr,  J;,   entored  Ucv/roer  iG,   190S,  r^-oa  fiaclin^-s  in  favor  of  th3  plsa.-a- 
tiff^_in  aa  action  to  q.v.iot  title.     lloC.ittstT'  ^  "~ 

Morris,  J.— aoci-ondciit  ■brou:iht  this  action  to  quicrj  her  title  to  three- 
lots   in  SdacndE,  allGSi.rkS',  tlut   on  Jvie  2,   1305,    tho  parties  liereto,    fben 
tocbcncl  aix".  v/ife,   -^.^.v^fiCL  to   live  aTiPart,    sxil  inaue  a  division  of  their  prep-- 
erty  interests;  t^.it,   in  pui-c-uance  of  &uii  a:;^reeirent ,  3,jpell:nt  caiised  to 
be  conveyed  to  respondent  certain  reel  property,   iucluc.ins  6ie   tliree  lots, 
as  Tber  role  ard  sepi.rate  estate,    aid  sh3  conveyed  certain  other  _.roperty  to 
appellarit  as  his   sole  ard  LSparzte  ectrte;   tli^t  subcec^uently  a  divorce  •-as 
decreed,   in  • -hich  decree  her  tittle  to  tlaese  three  lots    .-as  cmfinned;   that 
the  teeC.f  having  been  i-aade  prior  to  the  divorce  decree,  vas  presraia-ol^  a 
coraaimity  ^roixxt,  aixl   thac  her  title  bein-  clouded  by  appellant*c  presimpti-i 
coa-.Tunity  interest,   she  praj'^sd  for  a  decree  renovin^-  sucli  cloudi     Ihe  aiis-./e, 
deniet".  thes-e  facts,   alle^^ed   •Qae  ;ppelloj-ts  to  b.  tho  sole  o\Jner  of  tlD   lots 
xmder  the  divorce  decree,    piid  asted  to  have  the  title  decreed  to  be  in  hara. 
Tho  court  Hade  finding's   in  fa-.or  of  respondent,   ;nd  froij  judgment  entered 
ihereon  tliis  appeal  ..'as  ta':en 

Ihe  title  to  these  three  lots  -./ac,  prior  to  February  25,   1905,   in 
J^ames  II.  Gephart,    .ho  it  is  admitted  .--as  only  a  trustee  for  the  parties 
hereto.     On  th2.t  day  lie  made  a  deed  to  the  lots  to  respondent  at  appe'ulant'i. 
rec^uect,  and  delivered  tli©  same  to  appellarit  v/ho  retained  poGsession  of 
the  same  until  June  2  follovlii^,     Fron  this  point  on  the  evidence   is   in 
conflict,     Kavins  determined  to  end  their  r.iar ital   infelicity,  husbcnd  and 
'.vife  on  tlaat  day  ./ent  to  3verett  where  au  asreeaient   ..'as  entered  into  re- 
citing' a  division  of  the  property''  "ao^iordini^  to  the  various  C.eec.o  this  d:y 
executed  and  exchan^'ed,"  iospondent   e::ecufcin^'  a  deed  to  appellant  65  a 
piece  of  land  called  the  hones tead,   szc.  appsll:.nt  e::ecutin:j  a  deed  to  re- 
spondent bf  five-acre  ^jiecs.     p.espondsnt  then  testifies  that,  at  the  sarj» 
tiiae  aif-  as  a  part  of  the  agreecent,  appellant  ioaudec.  her   the  deed  to  these 
tlaree  lots,  •..hich  Gapha^'t  li;.  .  executed  on  February  25th.     Tliis  stPP-ellant 
denies,   zxf.  contends  thst  the  only  ree.l  propertjr  discussed  or  affected  at 
that  ticie    .'as  the  honestead  ant',   tlio  five-rcie  piece,   and  th^.t  he  never  de- 
livered  tiie  deed  to  the  tiii-ee  lots   to  respondent,   or  to  anj''  other  person, 
until  he  filed  the  same  for  reooxd  on  February  7,   1906.     Tlie  deed  appears 
to  have  been,   in  the  poscessiou  of  C.  ?:.  Crouch,  attorney  for  respond.ent 
in  the  dtvorco  ivoceediu^-,   fox    sovjq  time  prior  to  February  5,   1903;  for 
on  that  dsy  Croucli,   upon  "frhe-  written  recuest  of  res..ondent,  delivered   the 
deed  to  C-ep:'s:rt,    ciid,   as   it   .as  filed  for  record  FebiUc-.ry  7  at   the  rec^uect 
of  aadJellrnt,    it   is  fair  to  assume  it  "as  by  Gephart  delivered   to  appellant 
Crouch  testifie:;,  as  does  Caipenter,   the  present  husb  ixl  of  respondent, 
th?. ..,   subsequent  to  June  2,   appellrjit  pointed  out  these  three  lots  to  them 
as  the  pi  op  erty  of  respondent.     It  also  appears  that  respondent   su.bseruent- 
l3^  sold  one  of  the    lots,   and  that  upon  another  she  has  erected  a  d^^rellinj, 
all  of  \.hich   uas  laia/n  to  appell.nt.     She  also  offered  to  prove  that   she 


437. 

had  paid  all  subGocmeat   ta::©E,  tut  this  offer  \/aE  Tdjt  tlie  trial  court  re- 
juctGd.      It  doec,  ho-./ei^er,   zj^esc:  tloat   appellant  paid  no   ta::es  on  thece 
lots  subssouent   to  O'wif^  2.     We  thinl:,  therefore,  the  lo^.•er  court  was  just- 
ified in  its  firdinss   of  -fact. 

But  assuming  the   facts   to  be  as  found,  v.'e  cannot  concur   i/ith  the 
court  that  respondent  »vas  entitled  to  the  relief  prayed  fori     "hen  tlie 
deed  passed  froa  ."ephar-;  to  apPGlTan-r,    the  coin;T:iunity  thereby  becairB   in- 
vested •./ith  the  title s  a)xl  jt  could  r'cJ.v  become  divested  of  such  title  by 
a  proper  coix/eyance.     Conceding,,   as  ■'rhe  co^jt'c  below  fofjid,    tiiat  on  3\m.e  2 
it  was  the  purpose  cxyI  li.'.tenticn  of  sppellant  to  convey  these  lots  to  re- 
spondent and  iiTvest  her  with  the   title  as  hor  separate  estate,  he  could 
not  do   so  by  handing  the  deed  o-rsr   to  hev.     The  only  way  his  interest   in 
those  lots  conld  be  vested  in  lespo'adent  v/as  by  deed  from  hira  to  her.     It 
could  not  be  do7i?  by  intention,  purpose,   or  desire,  ho-..'Over  strongly  he    j 
may  have  e^^pressed  hiir.self.     T'e  have  heretofore  hjeld  that,  -vliile  a  title 
taken  in  the  -oame  of  either  spouse  is  presumptively  co-jmunity  property,   it 
is  proper    to  robur,  such  presu;nption  b,    evidence   that  the  purchase  price 
was  the  separate  fund  of  tie   one  in  -.hom  the  title  ■..as  talan,   or  by  sub- 
sequent oral  declexations  aid  admissions  of  the   separate  cha-acter  of   the 
pui'chase,   or  by  the  act.  of  the  parties  in  the   tree.titent  of  the  l?Jad  with 
reference   to  voluntary  liens,   or  "by  the  e::presEec'.  intention  of  the  spouses 
at  the   time  of  the  conveyance,  as  in  thecases  of  G-uye  v.  PliiUpton,  -'-O  7,as.:. 
254.,   82  i-ac.   595,    and   Ballr.rd  v.  Elyfield,  47  T/ash.   174,   91  tac  642.     So 
that,   if  the  deed  -iroa  Gephart  had  been  e-:ecuted  on  June  2,   in  accordance 
\dth  the   j^i-eement   tlicn  rarde  and  as  a  part  consideration  therefor,   there 
mi|;ht  be  some  r-ra-sind.  for  holdiug   (although  such  a  question  not  being  beforo 
us,  -/e  do  not   -;ish  to  be  understood  as  so  holding),   aided  by  the  subser^ueL', 
facte  as  found  by  the   cou.rt,   that  the  precur^^tion  har.  been  overcome  and  fha 
deed  held  to  past  sole  title  to  respondent. 

The  Ge,^!-art  deed  \.'as,  ho-..ever ,  ^ade  the  previous  February,  acd  no  in- 
tention of  its  purpose  and  efSect  in  June  could  alter,  change,  or  charact- 
eriaio   the    title  'hich  vestM  by  its    then  c  elivery  to  the   community.     There 
is   no  evidence  shff.-'ing  ar^.y  intention  of  malirog  any  property  settlement  in 
February  in  \/hich   t'tiAt  deed     ould  play  a  part.     It  is  prcbalily  true  tliat 
the  parties  vers   then  living  unhapilly  togetlier,  and  a  divorce -ora^.-  contem- 
plated, but   it  is  nob  contended  that  any  arriJigement s  had  then  been  inade 
loolung  to  an  amicabili/^adoustment   of   tl-^ir  proi-erty  rights,   nor   is   it 
sho  .-n  that  tespondont  liac.  any  laiov/ledge  of  the   e;:iEtence  of   this   Gephart 
deed  until  Juiie  2.      "e  c;;iinot,    thei-efore,  hold  there   is  any  relation  bct- 
v/oen  the  deed  of  Februar;-  25  and   the  agreer-isnt  of  Juno  2.     It  -..•ould  also 
appocJ  from  the  cvidcnccj  of  both  parties  that  tha  agrceri^ent  of  June  2  did 
not  dispose  of  all  their   property  rj^hos,  but  that  there  is  still  other 
property,  not  mentioned  in  the  agroeiixant  nor  referred  to  in  the  divorce 
proceedings. 

neither  did  tho  divorce  decree  arard  this  property  to  cither  party* 
Bespondent  was  the  plaintiff  in  that   action,  and   in  lier  comrld-nt  she  men- 
tions mag:;:  descriptions  of  real  property,  but  cahes  no  mention  of  tMs 
property.     'Ib.Gse  lots  not  being  referred  to  in  the  divcarce  action,   the 
court   therein  Imd  no  jurisdictiun  over  them,    and  could  male  no  decree 
affecting  them.     V/e  regret,   in  viev  of  the  facts  as  found  by  the  l0'..'er_      _ 
court,  which  -.e  believe  justified  by  tlie  evidence,  that  -.ve  are  constrainec. 


.-t? 


-  xi^tA^^t:^ 


"^ 


C^^^f.^-^'-t-*^ 


\ 


458* 

to  hold  that  our  statute  requiriug  all  conveyancec  of  any  interest   in  lane 
to  "be  fey  deed,   the  interoct  of  appellant   in  the  property  in  controversy 
could  only  bo  cUvestec;.  by  deecl,  aai  did  not  pass  by  the  delivery  by  him  oi 
the  Gephart  deed, 

Jt  does  not  follow;/;  however,  that  the  respondent  is  not   entitled  to 
relief  as,  under  the  facts  sho\.n  and  found,  v/e  have  this  situation;     An 
agreement   to  convey  so  as  to  vest  tf.tlu  in  her  as  hrr  separate  estate; 
an  attempt  and.  iliientiou  to  carry  out    thi.-i  agreercent  by  delivery  of  a  deed 
previously  e::ecutec"'.,   in  v/hich  she  is   n^inod  as  grantee;  a  surrender  of 
possession  to  he-.-,   end  a  f^ubseruent   acruiescenco   in  the   recognition  of  her 
title.     By  tho  plead?.ngs  5oth  parties  sub.nit  the   title  to  tho  decree  of 
the  court  and  ask  for  geaeri.l  ©qviitable  relief,     to  that  respondent  can 
here  be  av/ai"dei.  cuih  er-aj. table  relief  as  the  facts  sho-v/  her  entitled  to,- 
and  that   is  to  have   the  e^ree-iieut   of  O'une  2,  made  partially  in  consider- 
ation of  a  conveyEjice  of  this  property  to  her  and   in  consideration  of 
v;hich  sho  in  her  tii-n  conveyed  to  appellant,  specifically  enforced  and  a 
decree  entercc^  in  her  b3l:ialf . 

TIae  cause   ..•ill  tharofor^  be  rerarndod  to  thi  lower  court,  vJith  in- 
structions to  nialify  tix;  decree  so  as   to  direct  axi-l  order  that   Eppell?nt, 
within  thirty  days  fro^:;  the  filing  of  tho  rcmtt^itur   in  the  lov/ei-   court, 
e.'zecute  and  deliver  to   i-espondeut  hie   deed  to   tlic  lots  in  question,   in 
v/hich  deed  he   shall  divest  hinself  of  all  right,  title,   interest,  ard 
estate  in  and  to   xhe  lots  in  controversy,     jind  if  for  eny  reason  the  ap- 
pellant shall  fail  or  neglect  so  to  do,    ftie  decree  Eh?.ll  provide  for  the 
appointment   of  a  co/aniscioner,  v;ho   shall  be  duly  authorised  and   ccraiT.issioD- 
ed  to  carry  out  the  provisions  of  the  decree,     ffeither  party  \nll  be 
awarded  costs   in' this   court.  . .^^  \ 

EW-lcin,  C.  J.,  Sclle  ton,  ChacVvJiclz,   aid-G-osa,  JJ.,  cuucoi'. 


439. 


37.1BCY  E.  CLAKZ,  .appellant,  v.  lUKIOT  B.VZSR  et  al. 

Respondents , 

(76  Wash.  110,1913) 

Cross-appeals  from  a  jud^itent  of  tho  c^t'e^ior  cotirt  for  Spokane 
county,  Kuneke,  J.   entered  July  14,   1911,   iu  an  action  for  ©quita"ble  re- 
lief,  after  a  trial  on  the  raoritc.     Ilodified. 

G05Q,  J.— Tba.  olaiutiff  filod  a  Mil  in  eouity  for^t^-ie   purpose _Qf_ 
establishing  a  coamnity  interest   in  the   estate  ofjher  deceased  ]ii7r-^=^ •■•"•"  i 
geOTgelT*  ularic.     iJOth  tiio  pisintiiT  erx!.  the  defendants  have  appealed 
frQia-tlio~fincr~fe»ci-e,?.^i:.uc-.  they^:;ill  be  t'.'i'i^i'y^jn    f.:.  f^, «  ->1  ;-i  ij^Lirf  nndr-^- 
fenda^ts, 

Geor:,-e  IT.  Clark  died  testate  on  the   17th  day  of  April,  1910.     He 
left  a  nonintervention  vill.     Kis  estate  v/at  adjudged  solvent  snd  the 
will  is   being   aESCuted  by  the  deferdants  as  Iiis  executors.     The  only  men- 
tion of  the  plaintiff  iu  the  -.111  appears  in  the  follov/ini'  lant,xiase: 

"Taiereas  ray  -./ife,  iTancy  S.  Clark,   and  I  prior  to  ottr  marriase  en- 
tered into  a  marrir^^e  contract  rffectin:;,'  the  property  v.hich    viq  severally 
o-vmed  at  the  time,   cuL  .'hereas  her  property  so  affected  by  said  contract 
and  the  natui'al   increase   tliereof  is  anjlQ  to  support  he.    in  coafort  dur- 
ing her  lifetime,   it   is  i.^y  -ill  and  desire  and  I  hereby  direct  that  my 
e::ecutors  or  the  siTvivor  of  thej  shell  e::ecute  to  her  a  quit  clain  deed 
oe    oil  .roper ty  that  the  o  rned  at   the  tima  oc  lier  said  iTErriage  and  all 
that  has  been  a  natural   outgi-o.-th  of  tLi2  ssj-ne   (in  case   there  is  any  not 
heretofore  quit-claimed  by  me  to  her),   so  that  lier  title  thereto    •.ill  not 
be  clouded  on  account  of  our  said  marriaie  and   tiiat  my  enti-  e  estate  pass 
as  hereinbefore  provided,'" 

Tho  testatot  left  all  of  his   estate  to  the  children  and  grand-Child- 
ren the   issue  of  hiJiiself  and.  a  former  vAfe. 

The  plaintiff  axid  George  IT.  Clrr':  ■-ere  ra  rried  in  the  state  of  Ore- 
gon on  the  21st  da;^r  of  Iie.y,   18S0.     CI?:  k  then  resided  at  Oadesdale,   in 
this  state.     J.t  the  tino  of  the  laarrijge,  they  Mutually  inteixLed   to  malre 
this  state  the  family  domicile.     In  obsdieuco  to  that   intention,  they 
\Tent  of  Oal^sdale   a  fev;  days  after  tl:e  ii*  marriage,   end  resxLed  there  until 
sometiiae  in  llarch,   1891,   vhen  tliey  i:ioved  upon  a  f  ;rm  belorging  to  the  hus- 
band, near  £t.  Jolm,   in  ".r.;itut.n  countjs  '■■•iiere  they  resided  until  lloveraber 
1899,  \*en  they  moved  to  tpolzane,  ■.•.■l-jsre  they  resided  until  tte  decease  of 
the  husband..     The  plaintiff  h:.s  sence  continued  to   live  upon  the  home- 
stead in  Spokaae,  v^iic-h  had  been  the   family  home  for  eleven  years  before 
her  husbdxid*s  death. 

Both  tie  plaintiff  and  Clark  had  been  married  before,  and   each  had 
Children  by  the  for.;ier  ;.:r.rriage.     ThQ  plaintiff,  at  the  time  of  her  mar- 
riage to   Clark,   oaned  real  estate  in  the  state  of  Oregon.     Clark  at  that 
time   o-.Tned  about   CSO  acres   of  land  in  that  state.     !!e  also  o\Tncd  480  acres 
of  lair,   in  "iliitman  county,   this   state,   and  had  a  contract  v/ith  the  Horth 


440. 

em  I-acif  ic  Bc.ir..'?-y  Corr(pany  for  tho  purchase  of  320  acres  of  lard   in 
"Whitman  countj''.     This  contract  '..'as  taade  in  1887.     Ke  had  mido  at  least 
one  payr.ient  on  tlds   contract  at  the  time    of  his  marriage.     He  acquirec' 
the  legal  title  to  the  railroad  land   in  1897.     At  tlio  time  of  the  aarriage 
he  owned  perronallproioerty  in  V/hitnian  ca:nty,   this  state,  consisting  of 
about  250  head  of  mi::ed  cattle,   26  v/orl:  horsec,   9  colts,    aid  aTsout  OQCO 
in  money. 

The  plaintiff  and  the  deceased  lived  upon  the  V,hitraan  county  land 
fron  Ilarch,   1891,  until  EoveiAor,  189?,   ad  farmed  tne  land  from  1891  to 
1896  inclijsive.     Bet\.'een  the  harvest  of  1896  and  tthe  death  of  tho  deceas- 
ed the  1-snd  -./as  rented  upon  a  cash  rental  for  two  years,  an?,   for  Either 
one-third  or   one-half  the  cro^.    che  Eieiaaining  time.     The  farining  operations 
of  1891  aud  1892  v/oj-e  confiii^d  to  ler.r.  than  100  acres  a  year,  find  M'.^le 
or  no  profit  vas  made.     In  1893,   about;  500  acres  v;ere  cropped  and  hai*ver$- 
ed,  but  owing  to  t?js  unpiecedented  rains  of  the  year,  v£iile  tlie   crop  "vas 
large,   it  \/as  so  d2,_ia^od  tliat   it  did  not  pay  harvesting  eripenses.     In  1894 
XG^j^t   ::i'»d  1096,    ai3  crop  was  li^Jit  and  the  prices  vBre  so   lov;  that  no 
profit  '.VEi£  rnaC.e.     Tlie   record  shov/s  c'^nnculusivly  that  no  profit  resulted 
froui  the  far..iin--  opsrr.ticns  of  the  plaintiff  a  ad  her  huEbj:iid  during  the 
period  that  they  acitaally  conducvted   fche  farm.     The   testimony  accords  './ith 
the  experience  snd  obseryctiou  of  those  •.7h.o  v/ere  in  touch  ■.d.th  the  farm- 
ing conditions   in  Eastern  V/asIiington  at  that  tirae. 

ImiJ3di:tely  pa  ior  to  the  marriage,    iiie  plaintiff  :::d  Clarl:  e:cecut3d 
the  follo'..-ing  antenuptial  coutLact: 

"Agroomeiit  arde  this   21rt  day  of  Ilay,  1090,  at  I/auo  county,  state  of 
Oregon,  by  end  bet./een  George  H.  Clr.r,  p^rty  of  the   first  part,  .nd  ITciicy 
3.  iemon,  party  of   tho  second  part,   '."''iunesseth,   tia::.t   './heroas   the  said 
parties  cf    Gi^  first    aid   socond  part  contemplaae  lajxriage,    end  v/tereas 
the  party  of  the.  irst  i^art  is  the  ov.ner  of  real  property  situated  in  the 
states   of  Oregon  and  '7a£"..ington  and  has  a  family  of  sons  and  dau^ters  by 
a  former  aarrir^-e,   and  'Whereas  the  party  of   the  second  iiai't  is  the  o\aaer 
of  real  pi-operty  situated   in  the  state  of  Oregon  rnd  has  a  family  of  child- 
ren by  a  forjuer  ;nri-risge,  ITo-;  therefore  it   is  autually  conven^nted  by 
and  bet  -een  the-  partiei,  of  the-  first  and  second  part  that,   in  c  qi3S  id.era- 
tion  of  the  marriage  of  the  one  to  the  other,     Tliat  the  psrty  of  the  first 
part  doth  hereby  and  by  these  presents  rsijiise  and  relinquish  no-.;  and  for- 
ever all  light,  title,    intoz-est  or  claim  in  or   to  any  and  all  of  t>j3   roal 
■property  audipersoiv;!  property  which  .-nay  belong  to  tho  party  of  the   sec- 
ond :^.art  at  tlria    ti;js   of  tho  ^xX7i:.:^e  of  the  parties  hereto,  end  if  the 
said  party  of  th;  second  p„',rt  slr.ll  die  prior  to  tlie  party  of  the  first 
part,  all  of  her  lands  ond  personal  property  cued  by  hjer   in  her  o'-.-n  right 
sliall  belong  to  and  be  the  property  of   tho  children  of  the  pai'ty  of  the 
second  ^art,   and  the  psr-ty  of  the   first  p-;rt  sliall  not  claim  or  have  an 
estate  by  courtesy  in  any  part  of  the  lands  or iporsonal  property  of  the 
party  of  tho  second  Pcjrt,  anc".   tho  party  of  tho  first  part  doth  hereby  a- 
greo  to  sign  de2d  or  deeds  at   ;:iy  tijne  during  said  marriage  for  the  sal3 
Of  said  property  slic.ll  tl^e  party  of  tho  second  part  so  desire.    And  the 
party  of   the  second  part  in  consideration  of  said  marriage  hereafter  to 
be  solemnised  bet.rcen  the  vi^.i-tieG  liereto  doth  hereby  and  by  these  pres'ents 
renounce  and  relinquish  no-.;  end  forever  all  riglit,   title,   interest  or 
cljim  in  or   to  any  siid  all  of  tlie  re-l  ..property  ;.nd  personal  property  \/hich 


441. 

may  Taelong  to  the  party  of  the  firct  part  at  the   tirae   of  the  marraage  of 
the  paiHxGG  horoto,   aixl   if  the  pai'ty  of   the  first  part  sliill  die  prior 
to  the  party  of  tiie  seoonl  part  all  of  tto   land  czd  persaual  property 
ovflied  lay  him  iu  his   o\,ii  i^-i^ht  .ohall  all  belong  to  and  "be  the  property  of 
the  children  of  tiao  pai';y  of  the  fi:c3*-  part,   and  the  party  of  the  secor.-L 
part  shall  not  claim  or  liave  any  oFtuta  of  do\.er  in  ant  part  of   Sac  ir^jc-. 
or  personal  property  of  the  party  of  the  firct  part.     .Ind  the  party  of 
th3  Eecoxxl  part  doth  lxi-e"by  agree  to  Rise  deed  or  deeds  at  any  time  dxw- 
ing  said  marriage  for  the  sale   of  said  property  shall  the  party  of  the 
fir&t  part  so  desire. 

"It  is  fnrtl-£r  mutually  covenanted  hy  and  ■bet\veeu  the  parties  lioreto 
that  all  property  acc^uired  after  rearrjage  hy  the  ciutaal  endeavor  aor'.,  ja- 
boi-   <y£  "both  par.-tieRj   cn,-er  and  ahove  vhc.t  ic   required  for  their  snr.rcrt, 
shall  Tdc  the  jcinc  property  of  both  parties  in  equal  parts.      (Italics 
ours) . 

"Uitness  our  Iiriids  £jid  seals   this  2l5t  day  of  Ilay,   1890. 

"George  H.   Clarl-:  (Seal) 
"i;.  E.  LerwDn  (Seal)" 

It  -/ill  be  observed  that  1iie  essential  features  of  the  contract  are: 
(1)  rioat  C12-V  di^jclai.iTia  ell  interest  in  the  property,  both  real  ard  per- 
sonal, then  ovjued  by  the  plaintiff,  iixlueing  "courtesy."  (2)  That  the 
i^laintiif  rnal^ss  a  li!E  disclaimer  as  to  all  property,  both  real  and  per- 
sonal, then  earned  by  Clarlc,  including  "dov.-er."  (S)  Ihat  liaey  agreed  that 
"all  proportj?'  aociuired  after  uir.rriage  by  the  mutual  endeavor  and  labor  of 
both  pcxtiec,  over  and  above  vtiat  is  reriiired  for  their  support,  shall  be 
joint  property  of  both  pai-ties  in  equal  parts."  It  -./ill  also  be  obr^erved 
that  the  contract  is  silent  as  to  the  rents,  issues,  and  profits  of  the 
separate  property  of  the  contracting  parties. 

"Propertj'  aiid  pecuniary  rights  o-.,5aed  by  the  husband  before  n?rriage, 
and  that  acc;uired  by  him  afterwards  by  gift,  bequest^  devise  ac  descent, 
v.lth  the  reuts,    issues,  rnd  profits   thereof,'  is  Ms   separate  property. 
Eem.   a  Bal.   Code.  £:ec.   5915    (Pt    0.    95  Sec,    25j. 

"Property  an?,  pecuniary  ri^ts='  ovaied  by  the  -.vife  before  her  irarriage 
and  tliat  later  accoiired  by  bsr  in  the  rcanner   set  forth  in  See,    5915  is 
her  separate  property.     Rem.  J:  Bal.  Code,  Sec.   5916   (?.   C.   95  Sec,    9). 

Property  not   acquired  or   o\.!ned  as  prescribed  in  the  t-./o  preceding 
cections,  acc_uired  after  the  irarriage  by  either  h'J^band  or  vafe  or  both, 
is  coramunity  property.     Rem.   u  Bal.  Code,  Sec.    5917    (P.   C.   95  Sec-   27). 

Ihe  court  adiiiitted  testimony  of  the  declarations   of  the   deceased  in 
his   lifetirae  respectisag  tiio  purpose  of  the  contract,    on  the  theory  that 
the  contract  is  anbiguous  ;   but  later  reached  the   conclusion  that   it  i': 
not  ambiguous 0     Eie   court  coixluded  that   the  railroad  land  \-^s  presx;mably 
paid  for   after  ra.rriage ,    in  part   jith  community  furds  au,d   in  part  vrith 
the  separate  funds  of  the  decea.scd;   that  these  funds  had  been  so  coming- 
led  that  they  cou.ld  not  be  separated;    that  the  railroad,  land  v.-as  coinmun- 
ity  property  and    that  the   rents,    issues,    and  profits  arising  from  that 
land  \.CG  coiixungled  .ath   iiioce  arising  from  the   separate  property  of  the 


442. 

decerned;  ancl  hence  that  all  property  thereafter  acquired  waB  contounity 
property. 

Hbe   covrrt  wa^s  ri^t  in  holding  that  the  contract   is  unaahiguoiis. 
It  is  plain,  specifio  aad  direct  in  its  ternis  and  clearly  spealcs   the 
ttirds  of   th3  contrivtire  parties.     T>.q  court,  ho\/ever,  v.-as  \7rotj^-  in  hit; 
concli-Tsion  that   Sie  ra:iroid  Irnd  \7ar-:  CGErn'.u.uty  property.      There  -rao  no 
comEurdty  funlr.,  hence  ^here  could  "br-,  no  coiniiiirtslitifc.      In  1892,   Cla-'lc 
had  tlB  cod  ;.rci^c>n  on  the  railroad  l-xcH,  atid  paid  for  the  t.rea^.-xiig,   T/ith 
horses  which  h3   ovned  tefore  rccLrriagP.     The  scmo  year  lie   sold  cattle   to 
the   amount   of  0l,9CC,  axd.   in  1694  lie  sold  cattle   to   the  amount  oi   over 
$1,100.     Tliese  cattle  v/erc  his  separate  property.     The  court,    in  pasclns 
on  the  case,   said  thxt  the  partiec   in  enterl:^  into   the  cortract  did  not 
intend  "to  huild  a  \cl2  arouni  each    xaeb  oun  property."     V/e  thinl:  thi3   is 
precisely  That   t:i.vy  did  intdid  to  <Jc,   ai:.d  tLo  contra.^l-,  as  \;e  read  it, 
e:cpresses  that  intention  in  unequivc.-.ai   terms.     The  fa«;t  that  tlBy  under- 
took to  free  their  respective  properties  fran  "courtesy"  and  "IlowBr" 
rights,  \ih3Ch  hac".  end  Imve  no  eczistence  in  this  state,   ■strer'^-thens  that 
view.     They  made  no  direct  provision  for  the  rents,   isr^aeF  and  profits 
of  their  respective  properties,   and  their  funds  -."oilow  thf^  properties 
from  Thich  they  spring,  end  oux-  statutes  defiJ-o   their  ctP/:-3Z.     whore   it 
is  desired  to  provide,  'by  an  antenuptial  contract,   fot'  propsrty  a-;quired 
in  a  state  forei^;!  to  the  placo  of  the  contract,    sn-osecniDnt   to  the  lO'ting 
Of  the   contract,    ihe  contract  must  rpeal:  to  the  very  point~t3:r.t  is,    it 
must  nse  -.Tords  aalring  the  contract  spfecifically  appIicaVio  to  property 
so  acquired.     1005  v.  Hess,    164   111.  482,   40  H.  I)»    555,  45  Asa.  St.   143, 
27  L.  E.  A.   751;   Saeeland  v.  Ensley,   1  lleigs   (19  Teuu. )  620,   So  Am.  Dec. 
168;  iScSay,   Community  Property,  Sec,   570-5-?i. 

JLside  from  the  railroad  land,  all  of  the  property  in  controversy, 
e:wept  a  tract  purchased  v/ith  the  proceeds   of  the   sale   of  Clarlc's   la-id  in 
Oregon,  i.vas  acquired  by  purchase  sut^eqxient  to  the    cinB  the  actral    farm- 
ing operations   of   tlie  parties  ceafiel.     The  f  irsc  purchase  was  made   in 
October,   1699,   acd.  the  last  in  January,   197.0.      It  is  needless  to  prolong 
the  discussion  upon  the  main  issue.     Tb.e  evidence  <3ho«s  concluoive/.y   chat 
no  profit  '.SE  derived  from  the  farmirg  ope.va-.-ions  of  the  piaintiff  aJid 
her  husband,   and  that  the  railroad  land  ax£.  all  property  purclmsed  by 
Clexlr  subseruent  to  the  marriage  was  paid  for  out  of  the  rents,   iss'JiS, 
ard  profits  of  his  separc-te  property.      It  follo-./s   th.at  there  vas  no  com- 
munity property  at  the  tin©  the  community  wa-<?  dissolved  >y  the  death  of 
the  husband.      Ouy©  v.   Guye,    6S  T7ash.   340,    113"Pao.   751,   37  L.  B-  A.    (U.S.) 
186;  Dobbins  v.  Le:;ter  Horton  c";  Co.   62  T;a:3h-.  425,    115  Pac.  1.038;  T7orth- 
in^'ton  V.    Crapser,   63  Tash     360,  115  Pac.   849;   liiited  States  Fidelity  C: 
Guaranty  Co.  v.  loe,   58  T7ash.   16.    107  PaC  8Y0. 

On  the   10th  day  of  JUne ,   1910,   after  the  death  of  her  husband,   the 
plaintiff  duly  executed  a  declaration  of  honestead  and  filed  it  for^rnc- 
ord  the  sane  day.     It  embraces  lot  2  in  bloo'.t  10,   in  \7adsv.-orth  Cc  EcDcn- 
ald's  addition  to  Spo:xLne,  '.7hich  -./as  the  separate  property  of  her  hur-oand. 
The  plaintiff  and  her  husband  had  resiled  upon  this  property  from  tha  fal- 
of  1899  xmtil  his  decease,   and  she  has  since  rerio.ed  thereon.     The  has- 
band.  did  not  mal:e  a  declaration  of  ho.:^ stead  diving  his   lifetime.     'Hiere 
vas  no  issue   of  the  marriage  betwen  the  plaintiff  and  t.tie  deceased,   ana 
the  record  does  not  show  tliat  there  is  any  one   living  on  tlie  prcmxses 


-145. 

with  her  and  under  her  care  and  maintenance.     Thff  covcct  refused  to  give 
the  plaintiff  a  homestead  mjon  tliic  property,   presumalj]^  upon  the   theory 
that  her  rights,    if  any,    in  this  recpect  should  be  talcen  care  of   in  the 
probate  court.     Couroel  for  the  e;:ocator3  Ray  in  their  brief  that  they  do 
not  concede  her  right   to  a  honBfJtead.     \7e  entertain  no  doubt  upon  this 
question.     She  is  entibled  to   a  hortS3i;eed  in  the  separate  property  of  hcsi- 
husband  for   "a  limiced  periods"     La.',;'^  7.6-55,  p.   109,  Cec.   2,   and  p.   114, 
Sec.  3:5;  Rem.  c";  Bal,   Cclo ,  Sec.    1465,    I'^^^.S    (ip.   C.  409  Sec.   525;    327);    ' 
Fairfaic'v.  Walters,    66  yash..  533,    120  Pao.   Bi'}    In  re  Lloyd's  Estate,   54 
yash.   C4,    74  Pac ,   1061;  Austin  v.   CliTfovd,   24  Wash.   172,    64  Pac .   155. 
The  ri^^ht  to  a  hoitestead  accrues   to  "a  v;itlo-.7"  as  ccch,  ■men  there  are  no 
minor  children.     Rem.  u  Bal.  Code,  £ec.   1465   (P.   C.  409  Leo..  325). 

After  a  r)onii:tnrvention  ..lil  has  tew  p-r-oven;  tlzs  estate  ad^ivilged 
solvent  aad  the  errGOiitors  noned  in,  the  -.riil  have  accepted  the  trist,  the 
estate  is  removed  from  tlie  juxir;diction  of  the  probate  court.  e;:cept  as 
othervdce  provided  .in  the  statute  in  reference  to  nonintervention  '..alls; 
and  courts  of  equity  are,  therefore,  the  proper  forum  for  tlie  determJJia- 
tion  of  such  is'5t;es  as  are  here  tendered.  In  re  Guye's  Estate  63  T7ash. 
167,  114  Pac.    1041. 

The  plaintiff  filed  her  cost  bill  ncre  than  ten  daj'S  after  the  entry 
of  the   jud^r.ent.     Tbe  cost  bill   ./as  strioriju  upon  the  motion  of  the  defend- 
ants.    Hiic   is  a?! signed  as  orroi' .     Eiare  v/as  no  error  iu  the  ruling  of  the 
court.     Rem.  c.  Bal.  Code,  Sec,   482    (?     C.   CI  Gee.    12S1) . 

The   court  ca-rectly  fouml  that  lot  1,  blcclc  4,   of  Chion  Pari:  ac.ditior. 
to  Spolane,  vas  the  separate  property  of  the  plaintiff.     It  v.as  pixrchased 
vath  the  jXinds  arisiijg  from  the  sale   of   land  in  the  state  of   a-cgon  ./hich 
she   evaded  at  the   ticE   of  her  marriage-     Chere   is  no  controversy  cr/er  this 
property. 

Ohe  case  \all  bo  rcnardcd  v;ith  directions   to  enter  a  decree   in  favor 
Of  the  defendants  upon  fell  tho   issues  e::cept  the  homefstead  end  lot  1,  blocl: 
4,   Uaion  Pari;  acTdition  to  Gpotone .     She  plaintiff  is  seventy- 1-.70  years  of 
age.     She  has  a  life  9:5)00  tarcy  of  about   seven  and  one -half  years.     The 
court  is  directed  to  assign  to  her   lot  2,  bloc".:  10,    in  Uads-./orth  c;  i:cDon- 
ald's  addition  to  GpoV^ane,   as  a  homectead  for  ard  during  IzBx  i3atnral  life, 
the  legal   title  to  vest  in  the  devisees   of  Clca'!:  subject  to  this  ri:jlit. 

neither  party  v.lll  rccovor  costs  in  this  court. 

Chadiv.lcl:,  Ellis,  I'.orris,  'Iain,  llount,   aad  Fullerton,   JJ.,  concur. 

Crow,   C.  J.    (disiiontins)  — 1  dissent,  bein;:;  of  the   opinion  that  in  all 
respects  the   judgitent   of  the  trial  court  should  be  affirmed.     Having  read 
the  entire  record,    I  -.all,  before  e::presEing  ny  viev/s,,  mal^  a  stateii^ent   of 
material  facts  and   issues  -v.'hich  I  -ather  therefrom. 

In  Hay,   1D90,  tlx)  plaintiff  ITcncy  E     Clarl-,  formerly  Uancy  S-   lemon, 
and  George  IT.  Ciarlr,   nov;  deceased,  '.;ere  int3?iT.aiTied  in  the  state  of  Qre- 
gon.     Prior   to  their  imrriage,   the  plaintiff  -.vaf-  a  v/idor;,    the  mother  of 
several  children  by  a  former  hucband,    an',  o.apel  real  escate   in  the  state 
of  Oregon.      Seorge  H.  Glarl:,   prim-  to  said  itarriago    -^as  a  •.'ido^rer,   father 


i 


444. 

of  several  childroa  ty  a  former  vdfc,  rJid  ov.necl  real  estate   in  Oregon, 
and  real  estate,  horses,  cattle,  and   other  property   in  T/ashiagton.     His 
Y/ashiugton  land,    to  vhich  he  hold  the  fee  simple  title,  consisted  of  480 
acres  in  V/hitman  county,   J 60  thereof  being  mortgaged  for  O^OO.     He  then 
had  a  contract  \,-ith  the  Horthem  Pacific  Railroad  Company  for  the  purchase-^ 
of  an  adjoiniiDg  tract,   tte  north  half  of  section  25,    in  tovjnship  19,  noil'.* 
of  range  41,  east  W.  !I. ,    in  Whitman  cowaoy.     Qa  this  contract  he  had  made 
one  small  pa2,nT'.ent,  the  amount  of  r/hich  has  not  been  sho-.7n.      Immediately 
prior   to  their  marriage,  ITaacy  E.  Lemon  and  George  N.   Clark  e::ecuted  the 
vJTitten  agreement  set  forth  in  the  ma.iority  opinion.     T/ithin  a  f e.?  days 
after  their  narriago,   the  plaintiff  and  lier  husband  proceeded  to  V/hitman 
county,   at  first  raal:ing  their  home   in  C&lcesdale ,  but  siiortly  thereafter 
they  settled  on  the  ^litman  county  land,  not  more  than  80  acres  of  '.±iich 
was  tiion  in  cultivation.     Thoy  contin-aed  to  reside  on  this  land,   improving 
and  cultivating  it,  until  about   the  yoar  1899,    .hon  they  moved  to  Spclsine, 
v,here  they  lived  until  the  death  of  George  11.   Clarl:  \Aiich  occurred  on 
April  17,   1910.     There  \;as  no  iscue   of  their  marriage.     V/hile  they  lived 
together  as  husband  and  vnfe,  payments  \-Bre  completed  on  the  north  half  of 
section  twenty-five  in  \7hitman  county,  and   on  Octobez)  19,   1897,   the   same 
was  conveyed  to   George  IT.  Clark  by  warranty  deed.     During  their  residence 
in  \f^itman  county  and  in  Spoliane ,   George  H.  Clark  acquired  title  to  a  num- 
ber of  Spokane  city  lots,   sonE   of  them  improved.     He  also  acquired  title 
to  a  certain  tract  of  improved  real  estate   inSpo'.3ne,  xiiich  he  and  plain- 
tiff occupied  as  their  home  until  the  date  of  his  death.     This  property 
is   still  occupied  by  plaintiff.     Vfliile   living  in  Bpolcane,    George  H.   Clark 
sold  the  Oregon  land  vhich  he   ov,ned  prior  to  his  marriage,  and  v/ith  a  por- 
tion of  the  proceeds  of   tliat  sale,  piu'chased  real  estate   in  the  city   of 
Spolane.crMoh  he  later  traded  for  a  tract  of  land   in  Spokane  county,   laao\m 
and  designated  in  tie  recoid  as  the  Cheney  farm.     This  farm  was  purchased 
subject  to  a  mortgage  lien  for  about  ^900.     During  their  residence   in  Spo- 
kane,  the  plaintiff,  Hancy  E.  Clark,  sold  her  Oregon  land  ^ihich  she  ovaied 
prior  to  her  marriage,  and   invested  the  proceeds  of  that  sale   in  an  im- 
proved lot   in  l2iion  Park,   an  addition  to  the  city  of  Spokane.     This  place 
has  a  rental  value  of  about  §12.50  per  month,  and  is  conceded  to  be  plain- 
tiff's separate  property. 

George  N.   Clark  died  testate,  having  e::ecuted  a  nonintervention  \7ill 
about  si::  v/eete  prior  to  his  death.     His  estate  was  adjudged  solvent  and 
is  beirg  administered  by  the  defendants,  IJarion  Balcer  and  George  Kenry 
Clark,  whom  he  nsmed  as  executors,     "The   only  mention  of  Uancy  2.   Clark  in 
ttvis  \7ill   is  quoted  in  the  majority  opinion.     All  of  the  decedent's  prop- 
erty was  devised  to  the  children  and  grandchildren  of  himself  and  his  ^rst 
wife.     The  errecutors  took  possession,  and  ass^^rDd  the  exclusive  manage- 
ment,  of  the  entire  estate,    {e;ccept  the  homsstead)   including  all  property 
real   or  personal,  v-hether  acquired  before  or  after  carriage,  claiming  the 
same  to  be  tie  separate  property  of  the  deceased,   ard  insisting  that  the 
plaintiff  had  no  community  or   other  interest  therein.     Although  the  plain- 
tiff still  occupies   the  hone,  and,   since  the  death  of  her  husband  has 
filed  a  declaration  of  homestead  thereon,   the  executors  insist  that  it 
also  \ms  tie   decedent's  separate  property,  deny  her  right  to  a  homestead 
therein,  and  only  concede  the  Uhion  Park  property  to  her  as  her  separate 
estate.     In  other  v;ords,    they  insist  that  all  the-  property',  v/ith  the  ex- 
ception of  the  Union  Park  place,   -v.as  the  separate  property   of  George  IT. 
Clark;   that  the  v/idow  has  no  interest  therein,  and  that  it  has  all  been 


445. 

dovised  to  the  legateoG  naned  in  tlie  v;ill. 

After  Kalcing  T.ritten  deitard  for  en  allor;ance  of  her  claim,   and  a 
recognition  of  her  rights,    the  plaintiff  conmenced  this  action  agajj^.^t 
the  executors  and   legatees,   to  have  her  rights  ascertained  and  adjudi- 
cated, claiming  her  corjuiinity   interest  in  and   to  all  property  of   the  cc- 
tate  acquired  su'bsecue'iL   to  tho  marriage.     The  defendants  denied  that 
she  held  any   ';itlc   or  interest,    legaJ.  ac  equitable,    in  or  to  any  of  the 
property,   real  or  personal,    save  and  e-^cept   the  Union  Pari:  place,   and 
alleged  that  all  property  acquired  after  the  marriage  \7as  either  purchased 
v.lth  proceeds  of  sales  of  the  stoclc  and  its  iixrease  -.hiCh  the  decedent 
OTmed  prior  to  hie  marriage,   or  vath  the  procGeds  of  crops  and  rentals 
from  the  Vi/hitman  county  laad,  end   that  all  of  the  property  thus  acquired 
v/as   the  separate  propor-cy  of  George  IT.   Clark  at  the  date  of  his  death. 
Trial  vsls  had  upon  those  issues,     Tne  evidence,  vhich  is  conflicting,   is 
presented  in  a  record  of  such  interminable  length  that  it  cannot  he  v/ell 
(juoted,  analyzed,  and  discussed  in  an  opinion  of  moderate  length.     The 
trial  judge  held  that  a  considerable  pTcion  of  the  property  to  vhich 
George  H.  Clarl:  held  record  title  at  the  date  of  Ms  death,  vas   the  com- 
munity property  of  himself  and  -..Ife.     Some  contention  v-as  made,    in  the 
pleadings  c  and  dm-ing  the  trial,   to  the  effect  that  the  antenuptial  con- 
tract was  ambigr^Jor-E .     Upon  this  question,   the   trial  judge  announced  his 
conclusion  in  tlji   follov/ing  language: 

"I  thinlc  tliis  contract  is  no  t  ambiguous;    I  think  it   sets  forth  the 
intention  of   the  parties  A/ith  siifficient  clearness  to  determine  vhat  they 
meant  to  do.     They  first  dispose  of  ell  property  that   they  ov,ned  at  that 
tine,  and  then  this   last  clause  provides  for  the  property  that  \;ill  be  ac- 
quired in  the  futi:re,  and  it  provides  tlaat  all  property   to  be  acquired  Us: 
the  mutual   endeavor   of  both  parties,   over  and  above  v,hat   is  required  for 
their  support,  shall  be  the  joint  property  of  both  parties  in  equal  parts. 
Nov;,   I  do  not  think  tbey   intended  by'  that  agreement  to  set  aside   y-ie  prop- 
erty that  each  had  at  that  time  and  do  nothing  v/i  th  it,  but  their  intenticn 
was  that   the  property  might  be  used,  and    that  vhatever  they  acquired  after 
that  time  should  be  the   joint  property  of  the   t\-vo   of  them;    that  is   to  say, 
vhatever  remained  after  the  money  had  been  ei^pended  necessary  for  their 
support.     It  seems   to  me  that  is  the   only  reasonable  construction  that  can 
be  put  on  this  contract." 

After  making  this  announcenent  and  hearing  the  evidence,  he  in  sub- 
stance found,    that  all  incomes  of  the  plaintiff  and  decedent  from  every 
source  were  placed  in  a  common  fund;    that  all  their  fucds  v.'cre  commingled, 
no  accounts  being  tept;   tliat   it  was  their   intention  to  equally  own  all 
property  acquired  after  narriage;    that  one  psyment  only,   the  amount   of 
v.hich  was  not  shovm,  had  been  made  by  the  decedent  prior   to  his  marriage, 
on  the  north  lialf  of  section  twenty-five,    in  Vhitman  cotrnty;  that  all   3the. 
payments  vrere  made  from  funds  belongirg  eqtmlly  to  the  plaintiff  and  the 
decedent;   that  the  north  half   of  section  twenty-five  thus  became   joint, 
common,   and  community'  property;   that  the   community  paid  $2,400  upon  sepa- 
rate debts  of  the  decedent;  that  there  v.-as  no  evidence  of   the  ezctent  of 
the   income,    if  any,  from  the  decedent's  separate  property   in  the  state  of 
Oregon;    that  the  Cheney  farm  v.'as  purchased  v/ith  the  separate  funds  of  the 
deceased;   that  the  O^OO  mortgage  on  the  Chenej'-  farm  -i^as  paid  v;ith  commun- 
ity funds;   that  specified  real  property,  described  in  the  findings,  con- 


446. 

eistino;  of  a  number  of  improved  and  unimproved  lots  in  the  city  of  Spokane 
ani   the  north  half  of  section  twenty-five   in  Vifhitraan  county,  was  acquired 
after  rnarriage   in  coafnrmitj''  wirh  the  antenuptial  contract  and  hecame   com- 
munity property;    tLo.t  fha  pln.ini;iff  was   the  ovuer  of  an  undivided  half  ir-- 
terest   in  all  personal  property;   that  all  the  property  in  v^aich  plaintiff 
ovmc  an  undivided  hslf   interest  -.vas  r>oqu:-.red  after  marriage,  hy  tlis  mubu^,l 
efforts  ani   labor  cd?  tho  huchand  and.  -.alo   over  and  abcc/e  vAiat  was  neces- 
sary for  the5r  yuppoxi;    that  the   trial  judgo  did  not  under talse  to  f  i::.  the 
character,   or  aoouut   of   ihe  persoiiAl  '^ro'i^erty;   that  he  declined  to  coja'^Jdo- 
the  amount  of  rents  received  cubEsqua-.'i   to  the  date  of  the  hus-^and's  death> 
acd  that  he  also  declined  to  consider  in  this  action  plaintiff's  honestead 
rights . 

2.  decree  was  entered  in  accordance  -,dth  these  findings,   which  adjudg- 
ed plaintiff's   iatt^resi;  in  the    comavcj.ty  propej-ty,  protected  her  right   to 
a  further  accou.nriag  from  the  eiecatyri,   av/arded  costs  to  "be  paid  from  the 
decedent's  estate,  hut  declined  to  pass  itpcn  the  validity   of  the  honcestead 
declaration,   cr  require  aii  accounfciijg  in  thj.s  action.     After  a'at'ijE  Qf  the 
decree,  plaintiff  filed  a  Eupp.lerr.ental  pGtj'-icn  to  compel  an  accou'oting. 
Upon  dofendanos'  motion,   this  plead-lng  was  str'icl:.en,   roser^Jng.  however, 
plaintiff's  right  to   a  f-ature  accounting.     Plaintiff  filed  her  cost  bill 
more  than  ten  da;/s  after  entry  of  the  decree.     ¥pon  defendants'  motion  it 
•>T2.s  striciien,  and   only  a  portion  of  the  costs  claimed  were   tarted  hy  the 
clerk  of  the  court. 

It  seems   to  me   tiaat  this  statement,  ^2iich  I  feel   is  justified  "by  the 
roca-d,   sutstantially  disposes  of  the  defendants'   appeal.      I  do  not  assert 
that  I  liave  stated  in  detail  all  final  orders  made  hy  the  decree.     It  is 
unnecessary  to  do  so.     The   controlling  i;isuGS  -./ere   (1)  ^/hether  there  v/as 
any  cCEamunity  property,    {?,)  if  so,  \hat  portion  of  the  estate  \£.s  comiEiTn- 
ity  property,  and   (5)  what  charges,    if  any,   should  he  allowed  to  the  mdo^.v 
against  the  decedent's  separate  estate  and  his  portion  of  the  community'' 
property,   for  dishursementc   of  coaaur,it3'  funds  vi^hica  I'Ad  "been  metle  for  the 
benefit  of   the  decedent's  separate  estate — such,   for  instarce,    as  dishurse- 
ments  to  discharge  liens   on  his  separate  property.     Findings  \7ere  made  in 
suhstance  as  ahove  stated,   covering  all  of  these  issues,    and   I  conclt-de 
tlaere  ',;as  aniple  evidence   to  sustain  each  an.d  every  finding  thus  made^      In 
ri^  opinion,   the  antenuptial  contract  was  properly  construed  hy  the  trial 
judge.      It'was  the  undouhted  intention  of  the  parties  thereto  tlrnt  all  prop- 
erty acquired  after  marriage   ard  not  necessary  for   their  support  should  he- 
come  tlBir  joint   o".  comaunity  propertsr.     Hie  preponderance  of  the  evidence 
sustains  a  findii^  that  such  was   the  mutual  intention  of  the  plaintiff  and 
the  decedent.     On  numerous   occasions  the  testator  so  e::preEsed  himself, 
and  hJLs  actions  -./ere  at  all  times   in  harmonj'-  with  that  construction.     The 
■vvido'.?  is  ahout  sex'-enty  years   of  age.     Ker  husband  was  somev.hat  older.     The 
estate,  is   large,  valuable,  and  free  from  debt.     Eiere  is  no  suggestion  that 
differences,  \7ant   of  harmony,   or   laC'v  of  mutual  affection  ever  eicisted  he- 
tv7een  the  plaintiff  and  lier  husband.       On  the  contrary,   they  -..•ere  at  all 
times  devoted  and  affectionate,   one   to  the   other.     It  seems  prepocterous 
that  the  testator  intended  to  disinherit  her,   or  that  ho  could  l:ave  under- 
stood that  he  v!a.s  leaving  her  in  a  position  of  practical  penury,   compelling 
her  to  rely  upon  lier  Union  Park  property  for  support,    its  rental  value  be- 
ing only  about  §12. 50  per  montla.      It  \/ould  rather  seem  that,  -..hen  e::ecucing 
his  will,  he  considered  that  her  separate  property,   coupled  with  her  in- 


447. 

torost  in  a  large  amount   of  conmunity  property  v.hicai,  he  could  not  devise, 
vrauld  afford  hor  ample  Gupport.     Tri:o   the  v/ill  mentions  her  separate  prop- 
erty and  its   increase  as  her  means  of  Eupport.      It  does  not  appear  that 
there  over  v/as  any  lEcrear.e   in  her  separate  prcQperty;   but  v;hatover  the 
decedent 's  vie\/  may  liave  been  v/hen  maJcing  his  vill,    I  am  satisfied  that 
there  was  a  large  amoui:.t  of  carraunity  property,  as  foxud.  by  the   trial 
court,   one-half  of  jhioh  •./as  not  subject  to  a  testancntary  disposition 
by  the  decedent.     Under  the  evidence,   and  the  antenuptial  contract,  v.hich 
I  thinl:  tvas  properly  construed  by  the  trial  court,   I  conclude   that  the 
property  acquired  after  marriage,   sav^  and  oscept  the  Cheney  farm  and   the 
Itoiou  Parle  place,  v/as  community  property. 

In  the  absence  of  controverting  evidence,  and  independent  of  any  con- 
tract,  the  presumption  of  lav/  is  that  property  acquired  after  marriage   is 
conmunity  and  not  separate  property.     This  prima  facie  presumption  may  be 
rebutted  by  competent  evidence.     Ueymouth  v.  Sav/telle,   14  Wash.   32,  44 
Pac.   109;  United  States  Fidelity  L  Guaranty  Co.  v.   Lee,   56  Wash.   16,   107 
Pac.   870.:  Such  evidence,   ho:;©ver,  must  amount  to  clear  ard  connrincing 
proof  that   the  consideration  paid  for  the  property   in  question  came  from 
the  grantee's  separate  estate.     In  the  instant  case,    I  am  xjnable  to  find 
such  proof.     The  preponderance   of  the  evidence  sho;-re  that  plaintiff  and 
the  decedent  lEpt  but    one  furd;    that  all  receipts  after  their  marriage 
were  commingled;   and  that  neither  separation  nor  segregation  thereof  Tvas 
mad©.     This  being  true,   such  coruaingling,  c  cJt5>led  v/ith  the  prima  facie 
presumption  of  the   lav/  above  mentioned,   I  regard  as  sufficient,   in  the 
light  of  the  antenuptial  contract,   to  establish  the  community  character 
Of  tlB  property  v.hich  the   trial  court  has  found  to  lie  consaunity  property. 

The  plaintiff  on  her  appeal  insists,    (1)  that  the  trial  judge  should 
have  decreed  the  validity  of  her  homestead  declaration;    (2)  that  he  should 
not  have  stricten  her  supplemental  complaint,  but  should  have  required  an 
accounting  in  this  action;    (3)   that  he  should  have  alla/ed  her  Cl.200  as 
a  claim  against  tlie  estate   of  tlB  decedent  for  one-half  of  the  $2,400  of 
disbursements  above  mentioned,  which  \.'Qvq  made   in  payment  of  debts  her 
husband  contracted  prior  to  his  marriage,   and  vMch  disbursements  she 
claims  were  made  from  the  common  funds  of  the  oomaunity  estate;    (4)   that 
the  trial  judge  should  have  decreed  the  Cheney  farm  to  be  conmunity  prop- 
erty; and   (5)   that  he  erred  in  strikiag  her  cost  bill.     The  final  decree 
of  the  trial  court,   if  permitted  to  stand,  T;t)uld  protect  the  plaintiff's 
right  to  have  the  validity  of  her  homestead  declaration  adjxsiged  in  some 
future  action  or  proceeding.     It  y/ouIu  also  protect  ter  rigjit  to  a  future 
accounting  by  the  executors  and   legatees.     There  is  not  sufficient  evi- 
dence in  the  record  to  enable  this  oovirt  to  finally  pass  upon  these   issues 
in  a  trial  de  novo,  and  as  plaintiff's  rights   in  these  regards  vrauld  have 
been  protected  by  the  decree  of  the  trial  judge,  Jiis  orders  should  not  be 
disturbed. 

Tte  conflictii^  evidence  disclosed  by  the  record  •©ill  account  for   tbe 
marked  discrepancy  between   the  findings  of  the  majority  and  those  which 
I  v/ould  mal03 .     In  my  opinion,    this  evidence  preponderates  in  favor  of  the 
findings  and  conclusions  of  the  trial   jvd.ge,  which  should  net  be  disturbed. 
He  saw  the  vTitne-sses,  heard  them  testi^,  and  vras   in  a  much  better  posi- 
tion to  pass  upon  their  credibility  and  tlie  vveight  of  this  evidence  than 
are  the  monbers  of  an  ajppellate  court.     For  twenty  years  plaintiff  and  her 


'.<^??!:^<-*-~*Ks»^    -(2^n^   ^,.^^1^ 


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448. 

husband  lived  harmoniously.      In  that  time  they  acquired  a,  large  amount  of 
property   in  addition  to  the   testator's  separate  estate.      Ihe  evidence  oun- 
vinces  ns,  as    it  convincod  the  trial  judge,   that  much  of  this    increrosnt 
v;as  conmunity  property,   nnd   that  it  v/as  so  regarded  by  the   testator  and 
his  v/ife.     V/ith  duo  renpect  for  the  views  of   the  majority,    I  camot  es- 
capa  the  ccnviction   tliat  a  decree  adjudging  all   sich  property  to  have  "geen 
tie   testator's  separate  estate  deprives  the  widov/  of  her  legal  asd  equit- 
able rights,   and  I  most  earixestly  interpose  my  protest  against  the   entry 
of  any  such  decree  upon  the  record  now  before  us.     I'y  conclusion  is   that 
Qie  pleadings  and  evidence  sustain  all  orders  made;  that   the  record  is 
free  from  prejudicial  error;  aixL   that  in  all  respects  tiB  judgment   should 
"be  affirmed. 

Parker,   J.  —  I  concur  vath  the  Chief  Justice. 


i^'MZ  Vll . 


ci5!itTtON3. 


Character  of  wife's  inibtefli)« 

Arnette  v.  Reade 

Be  Burclick^a  Estata   (Cal.)    (l896) 

(a)  Can  these  rights  and  powers  be  altered 
by  contract  "between  the  apouaes?     y<^'^. 

Fisher  v.  March  (1912) 

Gage  V.  Gage   (1914) 

Clark  V.  Baker  (1913) 

Koontz  V.  Koontz   (1915) 


feSO  Ui   S»  311. 
44  PacJ.     734. 


69  Wash.  570. 

7i6  v.'ash.  262. 

76  T/'ash.  110. 

63  Wash.  160. 


^-  ^. 


■~^ 


M 


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